India’s Top Court Defers Marriage Equality Case To Parliament

India’s top court decided on Tuesday not to legalize same sex-marriage, arguing that it does not have the power to make such a decision. While the judges had disagreed on the degree to which same-sex marriages should be allowed, they unanimously found that the court does not have the power to grant the right to marriage, thus deferring the matter to parliament.

“It lies within the domain of parliament and state legislatures to determine the law on marriage,” said Supreme Court Justice D.Y. Chandrachud, who nonetheless urged the government to support the LGBTQ+ community and stop the discrimination against them. “This court has recognized that equality demands that queer unions and queer persons are not discriminated against,” Chandrachud said.

The court’s decision ultimately came as a disappointment to the LGBTQ+ community and the petitioners who brought the case to court in the first place, who had been hoping that the case would be another success in pushing for equal rights. “There’s been tremendous work that has gone into these petitions, and many hopes and dreams of the queer community attached to them – to lead lives that most other Indians take for granted,” said one petitioner for the legalization of same-sex marriage. “The fact that the dream could not come to fruition today is a disappointment for all of us.”

India’s LGBTQ+ community has long been fighting for equal protections and legal recognition. Most of the progress made over the past decade in improving the LGBTQ+ community’s legal rights has been at the hands of the judicial system. For instance, in 2018, India’s top court struck down the colonial-era ban on gay sex, which was previously punishable by 10 years in prison. In 2022, the court also decided that same-sex couples and unmarried partners were entitled to welfare benefits. Should the Supreme Court have ruled in favor of the petitioners on this most recent case, it would have been a massive victory for equal rights, allowing for same-sex couples to obtain the legal benefits which come with matrimony – including access to adoption, insurance, and inheritance.

While the court did not outright deny the legalization of same-sex marriage in this ruling, it has not been made clear whether a timeline has been set for Parliament to continue action on the matter – and without pressure from the court, it is unsure whether Parliament will be duly motivated to pass meaningful legislation. Given that Taiwan legalized same-sex marriage in May, many had hoped that India would become the second Asian country to recognize marriage equality. The arrest of momentum the court decision represents for the development of LGBTQ+ rights is therefore a severe disappointment.

This is “a day to be disappointed, but not to lose hope,” said Mario de Penha, the previously-quoted same-sex marriage petitioner. Although the ruling marks another bump in the long history of discrimination, this is not the end of the road for India’s LGBTQ+ community. Activists will continue to push for equal rights – whether it be through legislation or through judicial rulings.