India’s Supreme Court on Oct. 17 refused to legalize same-sex marriages in a landmark LGBTQ ruling, passing the responsibility back to the Indian parliament.
In response to 21 petitions that sought to legalize same-sex marriage, the five judges unanimously agreed that the institution for marriage was a legislative function.
“This court can’t make law. It can only interpret it and give effect to it,” Chief Justice DY Chandrachud said.
The ruling comes five years after the same court scrapped a colonial-era ban on gay sex and expanded constitutional rights for the gay community.
“Marriage is a social institution. The marital status is not conferred by the state,” said Justice S. Ravindra Bhat, one of the three other judges. “The idea of marriage is not a fundamental right.”
Justice Bhat said that LGBTQ individuals are free to choose their partners in India, but this “does not extend the right to claim any legal entitlement to any legal status for the same union or relationship,” CNN reported.
Despite the expansion of legal rights for the LGBTQ community in India, Prime Minister Narendra Modi’s government, the Bharatiya Janata Party (BJP), rejected the legal recognition of same-sex marriage.
During the hearings, the government argued that a marriage is only between a biological male and a biological woman, adding that same-sex marriages went against religious values and that the petitions reflected only “urban elitist views.”
Religious groups had also opposed same-sex unions, saying it went against Indian culture.
Lawyers for the petitioners argued that marriage is between two people, not just a man and woman. They said concepts of marriage have gradually changed with time and laws should acknowledge that.
India’s marriage laws prevent millions of same-sex couples from accessing legal benefits attached to matrimony in relation to matters including adoption, insurance, pensions, and inheritance.
Some of the justices urged the state to make sure same-sex couples don’t face harassment or discrimination in accessing basic needs, like opening a joint bank account. They called for steps to raise awareness among the public and establish hotlines and safe houses available for those in the gay community who are facing violence.
The court accepted the government’s offer to set up a panel to consider granting more legal rights and benefits to same-sex couples. It said the panel should include experts with knowledge and experience in dealing with the social, psychological, and emotional needs of people belonging to the gay community.
The verdict came as a huge disappointment to activists and same-sex couples.
“We were hopeful that it would go a little more positively,” Susan Dias, one of the petitioners, told CNN. “We filed the petition with the hope that we’d leave with some rights. So, definitely disappointment but I don’t think we’ve taken any steps back.”
Another petitioner, Mario da Penha, said it wasn’t yet clear if the court had set a mandate or timeline for Parliament to act.
“Without that mandate, there is no pressure on Parliament to enact any legislation,” he said.
Homosexuality has long carried a stigma in India’s traditional society, even though there has been a shift in attitudes toward same-sex couples in recent years. India is estimated to have at least 2.5 million LGBTQ people, according to government figures from 2012.
In May, Taiwan became the first jurisdiction in Asia to recognize same-sex marriages. In July, Nepal’s Supreme Court issued an interim order enabling the registration of same-sex marriages for the first time.
