ADVOCACY & POLICY | LGBTQ+ | VIOLENCE AGAINST WOMEN | ASIA
What did India's top court and media say about same-sex marriages?
WORDS BY ANANYA DAS | DAS@PROXYBYIWI.COM | 6 DECEMBER 2023
On 17 October, The Supreme Court of India declined to legalize same-sex marriages, ruling that the matter is for the country's top legislative body – the parliament – to decide.
In a split verdict, a five-member bench of the top court also ruled that non-heterosexual couples do not have the right to jointly adopt a child.
Unsurprisingly, the ruling Bharatiya Janata Party (BJP)-led government has remained silent over the verdict, since it had argued against giving constitutional validity to same-sex marriages. Meanwhile, the country's largest opposition party, the Indian National Congress (INC), said that it is "studying" the judgments and will have a detailed response subsequently.
The judgement has come as a setback to the LGBTQIA+ community in India, after the top court had decriminalized homosexuality in a landmark judgment in 2018. A review petition was filed on 1 November, arguing that the latest ruling is self-contradictory, and manifestly unjust.
According to the government, there were 2.5 million gay men in 2012. While no official data exist since then, reports suggest that India currently has about 135 million members of the LGBTQIA+ community.
Source: vogue.in
What did the court say in its judgement?
While the court unanimously agreed that members of the LGBTQIA+ community are subjected to discrimination and harassment, and that "queerness" is not an urban or upper-class phenomena, differences emerged over whether the state is obliged to legally recognise same sex relationships or allow civil partnerships or same-sex marriage.
The minority view of two judges held that a normative framework recognizing the civil union of adults in a same-sex relationship should be established by constitutional authorities. They also argued that sexual orientation cannot determine the right to enter into a union.
However, the remaining three judges differed, arguing that it is the responsibility of the legislature, and not the Court, to formally recognise and grant legal status to same sex relationships.
Regarding the issue of adoption by "queer" couples, while two judges held that "queer" couples should be given adoption rights, the other three judges disagreed.
While Chief Justice of India, D.Y. Chandrachud, argued that current adoption regulations are "violative of the constitution for discrimination against queer couples", the majority view acknowledged that although gaps exist, the laws cannot be held void.
How did the media cover the verdict?
India, home to a vibrant yet polarizing media landscape, has in recent years consistently recorded declining press freedom.
Conflicting editorial priorities, increasing violence against journalists and changing patterns of media ownership have come to define the state of affairs since Prime Minister Narendra Modi first assumed office in 2014. According to the World Press Freedom Index 2023, India was ranked 161 out of 180 countries, falling by 11 places since 2022. However, the government has repeatedly dismissed such concerns, raising questions over methodology and motives.
Against this backdrop, the media's overwhelming disagreement with the Court's verdict was both rare and heartening.
The refusal to legitimize same-sex marriages is a "huge legal setback to the queer community", noted an editorial in influential English-language newspaper, The Hindu. "In concluding that there is no fundamental right to marry, the Court has negated the expectation that it would not allow discrimination against same-sex couples in the marital domain to continue," the newspaper added.
The "growing evidence for Indian society's slow but sure progress down the road to acceptance of queer relationships is hard to ignore", respected English-language newspaper, The Indian Express, said in an editorial. It added, "It is now up to the legislature and judiciary to catch up."
The Court's "core job is to uphold constitutional rights, irrespective of popular endorsement or social custom," said The Times of India, the country's highest-circulated English-language newspaper. Furthermore, "It could have affirmed constitutional principles, and then left it to the legislature to do its job."
"What seems to have surfaced is a clash between marriage as a social phenomenon, carrying with it all the beliefs and biases of the society within which it is set, and marriage as a private relationship between two individuals, an 'intimate space', to which the plea for equality of marriage is relegated by the same society," said The Telegraph, an English-language newspaper, generally critical of the BJP. "Indians must decide whether that is the only, or true, ground for such equality," the newspaper added.
"Any hurdles stopping the legalization of same-sex marriages must be removed," noted Navbharat Times, a nationalist Hindi newspaper. However, given the ruling party's "absolute majority in parliament, there is little hope that any meaningful step will be taken in this regard", the newspaper added.
"Evolving perspectives on marriage necessitate that perceptions of the LGBTQI+ community must also change," noted Jansatta, a respected Hindi newspaper. Moreover, "Only when society changes its way of thinking will the government be more empathetic towards them."