Same-Sex Setback: The Recent Indian Supreme Court Refusal
The Indian Supreme Court recently ruled that same-sex marriage would not be codified into law. This decision comes after 21 different petitioners brought suit against laws that did not entitle same-sex couples to the same financial benefits enjoyed by married heterosexual couples. The Supreme Court’s Chief Justice did use the opportunity to advocate for same-sex couples. However, the Indian Supreme Court did not do enough with this decision, essentially punting the question of legality to the Parliament. In this case, they should have followed a precedent set by the United States in same-sex marriage equality. They should follow this example because legal marriage legitimacy has profound cultural and health implications.
The legality of same-sex discrimination in India is not a new phenomenon. In 2001, HIV activists in India first petitioned against Section 377 of the Indian Penal Code, citing that it unfairly hindered their work. During the colonial period, Britain implemented Section 377, a statute which states that homosexual activity is unnatural and can warrant imprisonment. LGBTQ+ protestors targeted this statute as a potential pathway to the decriminalization of gay sex. This activism produced mixed results with same-sex sexual relations being decriminalized and then recriminalized over the next decade. In 2016, the Supreme Court decided to hear petitions against its overturning of the Delhi High Court’s same-sex sexual relations decision in 2013.
Due to these petitions, the Indian Supreme Court decriminalized gay sex once more in 2018. This time, they claimed that social morality cannot affect constitutional morality and that equality under the law should exist for same-sex intercourse.
However, the Indian Supreme Court should have followed the same line of reasoning taken by the United States Supreme Court. Not codifying marriage rights is harmful to same-sex couples in India who miss out on the financial benefits of marriage; the Court is not doing enough to protect what should be the legal rights of its citizens.
The Indian Supreme Court argued that they cannot legislate around the area of same-sex marriage, directing the issue to the Parliament. In the United States, Obergefell v. Hodges is the case that codified same-sex marriage into law. The Court argued in its decision that both the Equal Protection and Due Process Clauses protect same-sex couples from discriminatory laws that do not recognize same-sex marriage. This decision erased defense of marriage statutes and allowed for same-sex marriage nationwide.
India’s Supreme Court contends that they cannot legislate on the matter, but they have ruled on the legality of same-sex intercourse previously. While the Court did mention that same-sex couples need legal protection in their announcement after the ruling, they did not provide a mandate for Parliament to act.
The Indian and United States’ Constitutions are alike in that they both have equal protection, with India’s stating that the State cannot deny any person equality. India’s Article 14 and the United State’s 14th Amendment can both act as an umbrella protection of same-sex marriage. The Indian Supreme Court could mirror the United States by claiming marriage as a fundamental right protected by equal protection under the law.
The aforementioned facts demonstrate that the Indian Supreme Court likely could have enshrined marriage rights into their legal code. The legal foundation does exist for them to support LGBTQ+ citizens; they chose not to in this case under the guise of not wanting to step on the toes of Parliament. The Court used these petitions as a flash point whereby they could advocate for LGBTQ+ rights without having to make a binding decision. The Court recommended that a panel should look into the effects of marriage equality and of providing the financial benefits of marriage to same-sex couples.
Similar to the Conservative push in America, Indian religious groups on the right have also espoused harmful rhetoric about marriage rights, claiming that same-sex unions are invalid if procreation is not feasible.
So where does this decision leave members of the LGBTQ+ community in India?
The ruling party in Parliament does not stand for marriage equality, as they claim it is oppositional to traditional family values. This stance means that, in the event that the Parliament does take up the Supreme Court’s deferral, the conservative Bharatiya Janata Party would make it difficult to legislate for marriage legality.
LGBTQ+ activists have expressed that this decision will affect how they protest in the coming years. They are not content with the panel and are pushing for Parliament to consider legislation; some activists contend that they will have to mobilize protestors to pressure their government into action on the marriage equality issue.
Overall, the Indian Supreme Court did a great disservice to the Indian LGBTQ+ community by not protecting marriage rights through Article 14. They should have followed the path created by the United States and codified marriage rights instead of delegating responsibility to the legislative powers. While the U.S. is not the foremost proponent of LGBTQ+ rights globally, they do have a workable example for a legal framework through which to codify gay marriage into law. Whether or not Parliament chooses to move on this topic will affect the future of this issue in India, but the Supreme Court lost its chance to identify marriage equality as a constitutional right.
Supreme Courts should be dynamic protectors of civil rights, and India failed in the case of marriage rights. Countries like India should look to the United States as an example of how to accept marriage equality as a fundamental, and more importantly, constitutionally protected right. LGBTQ+ communities are not going anywhere, meaning countries like India need to adapt their legislation to ensure it equally protects all citizens.
Andreas Rivera Young is a Senior at Brown University, concentrating in Political Science and History. He is a staff writer for the Brown Undergraduate Law Review and can be contacted at andreas_rivera_young@brown.edu.
Kourtney Beauvais is a sophomore at Brown University, concentrating in International and Public Affairs. She is an editor for the Brown Undergraduate Law Review and can be contacted at kourtney_beauvais@brown.edu.