India’s Supreme Court has declined to legalise same-sex unions, dashing the hopes of millions of LGBTQ+ people seeking marriage equality.
The highest court in India decided not to allow same-sex couples to get married. Instead, they agreed with the government’s suggestion to create a group to think about giving more legal rights and benefits to same-sex couples.
People who support same-sex marriage and the couples themselves said they were sad about the decision and will keep fighting for their cause.
The court was looking at 21 requests from same-sex couples and supporters.
In April and May, a group of five important judges had long discussions about this matter, and they let people watch it online.
The ones who asked for the change in law said that not being able to marry goes against their rights in the constitution and makes them feel like they’re not as important.
They suggested that the court could just change the words “man” and “woman” to “spouse” in the Special Marriage Act. This act lets people from different religions, social groups, and countries get married. This way, it would also include same-sex couples.
The government and religious leaders didn’t agree with these requests. They said only the parliament, which is a special group of decision-makers, should talk about this issue of marriage. They also said that allowing same-sex marriage would cause problems in society.
On Tuesday, the judges agreed with the government. They said only the parliament can make new laws, and they can only explain them. They liked the idea from Tushar Mehta, who speaks for the government. He suggested making a team, led by the most important government official, to think about giving same-sex couples the same rights and benefits that straight couples have.
Two of the judges, including Chief Justice DY Chandrachud, wanted to create a special kind of partnership for same-sex couples and give them the same benefits as married couples.
The chief justice also gave a long list of instructions to the government. He told them to stop any unfair treatment against the queer community and to keep them safe from harm. Justice Chandrachud also said that queer and unmarried couples should be able to adopt a child together.
However, when all the judges had finished talking, it was clear that most of them didn’t agree with Justice Chandrachud’s list. So, his instructions won’t become official rules. They will just remain as suggestions.
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At the start of the hearings, it had seemed like India was on the cusp of making history by allowing same-sex marriages.
The five-judge constitutional bench had said they would not interfere with religious personal laws but look at amending the Special Marriage Act to include LGBTQ+ people.
When they were discussing the matter in court, they realized it was very complicated. They saw that things like divorce, adoption, who gets what after someone passes away, and other related things are controlled by many different laws. Some of these laws are connected to people’s religious beliefs.
The decision on Tuesday made activists and same-sex couples very sad. One activist, Sharif Rangnekar, said he felt a lot of hope when he went to the courtroom in the morning, but when he heard what the judges said, he felt really let down. He said it feels like they’re leaving everything up to a government group, but they didn’t say when this group will be formed or when they’ll get their rights. This makes things very uncertain and worrying.
Pia Chanda, who has been in a same-sex relationship for 34 years, told the BBC that the Supreme Court is basically avoiding taking responsibility. She thinks this decision is not surprising and will keep unfair treatment in place.
The judgement has also been welcomed by many.
Adish Aggarwala, president of the Supreme Court Bar Association, told reporters that he was happy that the court had accepted the government’s argument that it did not have the power to legalise same-sex union.
“That right only rests with the Indian parliament and we are glad that the court agrees with us,” he added.
Before the verdict, Mr Aggarwala had told reporters that allowing same-sex marriages would not be a good idea as it is “not in accordance with the system prevalent in India”.
The debate was being keenly watched in a country which is home to an estimated tens of millions of LGBTQ+ people. In 2012, the Indian government put their population at 2.5 million, but calculations using global estimates suggest it’s at least 10% of the entire population – or more than 135 million.
Same-sex couples had been pinning their hopes on this key judgement – many had earlier told the BBC they would marry if the petitions went through.
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Attitudes to sex and sexuality in India remain largely conservative and activists say the community continues to face stigma and discrimination.
During the hearing, Mukul Rohatgi, one of the lawyers representing the petitioners, said society sometimes needed a nudge to accept LGBTQ+ people as equals under the constitution and that the top court’s decision would drive society to accept the community.
But for India’s LGBTQ+ community that nudge did not come today.
SOURCE:BBC