New Delhi CNN –
In a landmark ruling, India’s Supreme Court rejected legal recognition of same-sex unions while also emphasizing the right of the LGBTQ community to be free from prejudice and discrimination.
Activists had sought to preserve the right to marry under Indian law and thereby gain access to the same privileges available to heterosexual couples. But although this was rejected, they welcomed the court’s recognition of their relationships.
A five-member Constitutional Bench headed by the Chief Justice of India delivered the much-awaited verdict on Tuesday. The verdict was broadcast live across the country and to crowds outside the court who gathered to watch it on their cell phones.
During the two-hour verdict, Chief Justice DY Chandrachud said queerness was a “natural phenomenon” and called on the government to ensure that “the queer community is not discriminated against on the basis of their gender identity or sexual orientation”.
Justice S. Ravindra Bhat said the right of LGBTQ couples to choose their partners was undisputed and they had the right to celebrate their commitment to each other “in any way they wish in the social sphere.”
However, he added: “This does not extend the right to assert a legal claim to any legal status for the same union or relationship.”
Bhat called for the formation of a “strong committee” to evaluate laws that indirectly discriminate against LGBTQ couples by denying them “compensation benefits or welfare entitlements” that normally accompany a legal marriage.
“This court cannot address this complex task within the legal framework, the state must examine the implications of these policies and claims,” he said.
India’s marriage laws prohibit millions of LGBTQ couples from accessing the legal benefits associated with marriage on matters such as adoption, insurance and inheritance.
More than a dozen applicants had challenged the law and taken their case to the Supreme Court, which heard their arguments at hearings in April and May.
Susan Dias, one of the plaintiffs in the case, said she and her partner were “disappointed” by the verdict.
“We were hoping things would be a little more positive,” she said. “We submitted the petition in the hope that we would come away with some rights. So definitely a disappointment, but I don’t think we’ve taken a step back.”
The ruling Bharatiya Janata Party (BJP) government had resisted calls to legalize trade unions.
In a submission to the court earlier this year, the government’s lawyer, Solicitor Tushar Mehta, described same-sex marriage as an “urban” and “elitist” concept – one that was “far removed from the social ethos of the country”.
Dozens of LGBTQ activists gathered outside the Supreme Court in the Indian capital New Delhi as the verdict was read.
Some welcomed the ruling as a progressive step, while others said it was not good enough.
Pranav Grover, 20, said it was a “diplomatic” verdict. “It was about making both parties happy,” he said, adding: “Let’s start focusing on the positive.”
Another viewer, Faraz, said he was a bit disappointed.
“When we found out about the privileges, it’s definitely a good thing,” he said. “It’s not a loss.”
Amrita, who goes by she/they pronouns, said that while it was “very nice to be recognized by the judges,” it was time to “make a move.”
They added: “This level of indifference was not to be expected after so many months of waiting.”
Celebrity chef and LGBTQ activist Suvir Saran said the Supreme Court “may not have given us the right to marry, but it has used the bench as a classroom to educate lawmakers and citizens about homosexuality and other things.”
India has a large LGBTQ community and celebrates gay pride in cities across the country, but attitudes toward same-sex relationships have remained complicated.
Centuries-old Hindu mythology is about the transformation of men into women, and sacred texts feature characters of the third gender. But same-sex sexual intercourse was criminalized and the right to marry was limited to heterosexual couples. This happened under a penal code introduced in 1860 by India’s former British colonial rulers.
During their nearly decade in office, Indian leader Narendra Modi and his ruling BJP party have sought to shake off India’s colonial baggage, rename streets and cities and push for India to be in control of its own destiny. But Victorian same-sex marriage laws are a throwback to the colonial past his party fought to preserve.
Activists in India said the law not only restricts members of the LGBTQ community but also promotes other forms of discrimination and provides an excuse for extortion and harassment.
After a decade-long battle in 2018, the Supreme Court struck down the colonial-era law that criminalized same-sex intercourse — but left the legislation limiting marriage to heterosexual couples untouched.
Since then, surveys show that acceptance of homosexuality has increased.
According to a Pew poll released in June, 53% of people thought homosexuality should be accepted – a 38% increase from 2014.
But despite this greater acceptance, conservatives in India oppose same-sex relationships.
Leaders from the country’s various religious communities met earlier this year and declared that marriage “is for procreation, not for recreation.”