The Supreme Court on January 22, 2024 issued a notice to Maharashtra Chief Minister Eknath Shinde and 38 MLAs supporting him on Shiv Sena (UBT)’s plea challenging Speaker Narwekar’s January 10, 2024 order.
The Supreme Court’s verdict declining to legalise same-sex marriage has evoked mixed reactions. The unanimous ruling left the LGBTQ community disheartened, while many proponents of their rights view the court battle as a step towards evolution of Indian society. Five years ago, the same court had made headlines by decriminalising gay sex, marking a significant milestone in recognising LGBTQ rights. While many hoped that this was a precursor to further reforms, Tuesday’s verdict highlights complexities within India’s legal landscape. The court’s reasoning for leaving the decision on legalising same-sex marriage to Parliament rests on the principle that the legislature is the appropriate forum to address the contentious issue.
This approach, while rooted in constitutional principles, raises questions about the judiciary’s role in safeguarding fundamental rights. It is this role that many believed the court should have embraced, as it often has in the past, to advance LGBTQ rights. However, the court ruled that the right to marry was not a fundamental right, which would appear a somewhat narrow view. Chief Justice D.Y. Chandrachud, who headed the bench, acknowledged the diverse opinions surrounding same-sex marriage. This diversity of thought is characteristic of any democratic society. By accepting that any decision on legalising same-sex marriage is the domain of Parliament, the judges stayed away from accusations of legislating from the bench.
However, the disheartened petitioners and their larger movement know that the political arena has historically moved slowly in addressing LGBTQ rights. The government’s argument that same-sex marriage is incompatible with the traditional Indian family struc- ture of a husband, a wife, and children is a viewpoint held by many in the country. The court’s decision does not directly challenge this notion. This has led some to argue that the court missed an opportunity to make a clear statement against discrimination.
The court’s choice to establish a panel, suggested by the government, to address the “human concerns” of same-sex couples could be seen as a constructive step. However, it might not be sufficient to address the broader issues at hand. While the panel is tasked with considering issues like access to joint bank accounts and pensions, these are just fragments of the broader spectrum of rights that should be extended to same-sex couples. The immediate aftermath of the verdict was marked by members of the LGBTQ community leaving the court in tears. The disappointment is evident, as many had expected a more assertive stance from the judiciary.
This ruling also highlights the broader context of LGBTQ rights in Asia, where con- servative values often dominate. While the 2018 decision striking down the ban on gay sex was a step in the right direction, it is clear that there is still a long road ahead. In Asia, only Taiwan and Nepal currently allow same-sex marriage, underscoring the challenge activists face in pushing for legal recognition. The debate on this issue will undoubtedly continue and it is now up to the government and Parliament to consider the call for equal rights and legal recognition for all couples, regardless of their sexual orientation.