India’s Supreme Court rejected a plea to legalize same-sex marriage Tuesday, saying that it was up to parliament to legislate the issue. However, it said the community must be protected from discrimination.
The ruling by a five-judge bench sent a wave of disappointment through the LGBTQ community, which had hoped that the top court would grant the right to marry.
Two Asian countries currently allow same-sex marriage.
The livestreamed verdict was closely followed by tens of thousands of community members and broadcast by television channels. Many gathered outside the Supreme Court, listening to the judges on their mobile phones.
Hopes of a positive outcome fell when Chief Justice D.Y. Chandrachud said there were degrees of agreement and disagreement among the justices “on how far we have to go” on same-sex marriages.
“It lies within the domain of parliament and state legislatures to determine the law on marriage," he said. “The court cannot make law.”
For the LGBTQ community, that could mean a very long wait for legalization of same-sex marriage in a largely conservative country where few political parties or lawmakers have spoken in support of gay rights.
“We are closer to the moon than to gay marriage in India,” Manak Matyani, a gay rights campaigner in the Indian capital, told VOA.
The judgment was handed down six months after the court began hearing petitions by 20 gay couples who said that being denied the right to marry violated their right to equality. Their lawyers argued that marriage was a union of two people and important in India, which is a “marriage-based culture.”
The government and religious leaders strongly opposed the petitions during the hearings. Calling them "urban elitist views," the Hindu nationalist government said that such marriages are not "comparable with the Indian family unit concept of a husband, a wife and children."
However, there were some takeaways for the LGBTQ community. During the two-hour ruling, the judges said queer couples have a right to live together and called on the government to ensure that they are protected from discrimination and bias. One of the judges emphasized that queer relationships were neither urban nor elitist and said that LGBTQ couples could celebrate their commitment “in whichever way they wish.”
The court also accepted a proposal made by the government during the hearings to set up an expert committee headed by the country’s top bureaucrat to consider granting queer couples several rights and privileges that are available to heterosexual couples, such as the right to hold joint bank accounts and inheritance rights.
That proposal has not inspired much confidence among gay activists. “The judgment has no teeth,” said Matyani. “Very often we see that committees are formed but nothing comes out of their recommendations. When governments decide to be lethargic on some things, they can just put such recommendations on the back burner.”
Other gay rights campaigners agree that the road ahead for the community will not be easy.
“The court has asked for a committee to be formed and for parliament to consider the issue of same-sex marriages, but when that happens there is a lot of pushback,” said Anjali Gopalan, founder of the Naz Foundation, which campaigns for rights for the LGBTQ community.
“All things considered, the judgment is extremely disappointing,” she told VOA.
The Naz Foundation was at the forefront of a legal battle in 2018 leading the top court to scrap a British-era law that made homosexuality punishable by up to 10 years in prison. The landmark judgment helped India’s gay community be more open in public and started the slow process of societal acceptance. In recent years, some gay couples have even held ceremonies akin to weddings.
Among them was Abhay Dang, who said he was deeply disappointed by the verdict.
“On a personal level we feel proud that we fought this battle,” he said. “Though we lost, lots of dinner table conversations were initiated because of this case. We remain hopeful that one day we will have full marriage equality.”
Among those who welcomed the verdict was the Supreme Court Bar Association, which had earlier said the court does not have the power to legalize same-sex unions.
"That right only rests with the Indian parliament, and we are glad that the court agrees with us," its president, Adish Aggarwala, told reporters.
Several gay rights activists have vowed to continue their fight for equal rights.
