India’s Supreme Court declines to legalize same-sex marriage

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India’s top court on Tuesday said it cannot legalize same-sex marriages, with the chief justice of the country saying making such a law is the domain of parliament.

A five-judge bench headed by the Chief Justice of India, D.Y. Chandrachud, heard arguments in the case between April and May this year and pronounced its verdict on Tuesday, unanimously agreeing that marriage isn’t a fundamental right.

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Chandrachud said there was a degree of “agreement and disagreement on how far we have to go” on same-sex marriages as he began reading his order.

Two of the other four judges agreed with Chandrachud on the court not legalizing same-sex marriages, making it a majority.

Two other judges are yet to speak.

The chief justice said the institution of marriage doesn’t stay static or stagnant, but the court can’t make the law. “It can only interpret it and give effect to it,” he said.

The Supreme Court called on the government to set up a committee to look into the rights and entitlements of LGBTQ people, including assessing rules around medical, financial, and inheritance benefits — issues that had been highlighted by petitioners in the case.

The court ruling comes five years after a historic 2018 judgement when the Supreme Court scrapped a colonial-era ban on gay sex.

Less than 40 countries recognize same sex marriage, including just two places in Asia — Taiwan and Nepal -- where largely conservative values still dominate politics and society. India’s case was closely watched across the region, including in Thailand and South Korea, which are considering similar measures.

Prime Minister Narendra Modi’s government had opposed the petitions, calling them “urban elitist views” and stating that parliament is the right platform to debate and legislate on thematter.

It had also said that such marriages are not “comparable with the Indian family unit concept of a husband, a wife, and children.”

Marriage is governed under various codes in India, including the Special Marriage Act, a secular law that previously legalized intercaste and interreligious unions.

Lawyers for the plaintiffs — a diverse group of couples — pushed the court to extend the Special Marriage Act to same-sex marriage.

The petitioners argued that blocking them from marriage violated their rights under India’s constitution and created difficulties around inheritance and adoption. During the hearings, India’s government offered to set up a panel to look into those issues, but skirted the marriage topic. Government panels are often slow in enacting change.

Read more: India court hears petitions against government’s removal of Kashmir’s special status

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