India : Supreme Court’s Verdict on Marriage Equality
On 17 October 2023, a five-judge constitution bench of the Indian Supreme Court delivered its verdict in the plea for marriage equality in India. While we applaud the Court for recognising that ‘queerness is a natural phenomenon’ and that queer individuals deserve protection from discrimination, we express our disappointment in the verdict that refused to recognise queer persons’ right to marry. The judgment has also refused to grant same-sex couples the right to adopt children as a couple, while acknowledging that the State needs to explore the possibility of adoption for unmarried couples, including queer couples.
“The judgment has come as a major disappointment and a setback for queer rights in India. The Supreme Court — while having reaffirmed the right to choose one's partner without facing discrimination - has refused to recognise queer persons' right to marry. This does not guarantee any real protection for queer couples from legal hurdles or societal discrimination,”said Ajita Banerjie, Senior Research and Policy Officer, ILGA Asia. “But this is not the end. Our fight for equal rights and recognition will continue. Queer persons in India, and everywhere in the world, deserve to live — and love — with dignity and without fear.”
All five judges in this case unanimously agreed that there is no constitutional right to marry; that creating legal entitlements for queer relationships is beyond the ambit of the Supreme Court and should be within the exclusive power of the legislature. However, it was reaffirmed that queer couples have an inalienable right to form relationships or associations, and have the right to choose a partner - as previously held in Navtej Singh Johar v Union of India, 2018 and Shafin Jahan v Ashokan K.M., 2018. Further, the verdict has noted the right of LGBTIQ persons to freedom from coercion from their families, the state, and society at large, as guaranteed under Article 21 of the Constitution, as previously held in a Madras High Court ruling in Sushma v. Commissioner of Police. Finally, the judgment endorsed the right of transgender persons, who legally identify within the gender binary, to enter into heterosexual marriages under existing marriage laws, as previously held in a Madras High Court ruling in Arun Kumar v. Inspector General of Registration.
All five-judges directed the government to set up a Committee to examine the scope of legal entitlements and benefits that can be made available to queer couples with a view towards addressing the discrimination faced by them. There are, however, no clear directions on the timeline for setting up the Committee or the composition of the Committee members in terms of representation. Finally, Chief Justice of India, DY Chandrachud, reiterated the need for comprehensive anti-discrimination laws and policies to protect LGBTIQ individuals, including directives to law enforcement and a complete ban on conversion therapy and forced surgeries for intersex children - among other broad anti-discrimination directives.
“In light of the recent Supreme Court verdict, it’s clear that while steps forward have been made in recognizing the inherent humanity and rights of queer individuals in India, significant strides are yet to be made. The failure to recognize the right to marry and adopt for queer couples underscores the pressing need for comprehensive legislation that truly acknowledges and respects the rights of the LGBTIQ community. We appreciate the Court’s directive for the government to set up a Committee to examine the rights of queer couples. However, it’s imperative that this Committee be both inclusive and prompt in its actions. Our hope remains that India will soon join the many nations that have fully embraced the principles of love, equality, and justice for all,” said Henry Koh, Executive Director, ILGA Asia.
For further queries, please contact
Ajita Banerjie, Senior Research and Policy Officer (ajita@ilgaasia.org)
Nadine Hassan, Senior Communications Officer (nadine@ilgaasia.org)
