Same-sex marriage will not be allowed in India. On Tuesday, October 17, the Indian Supreme Court rejected the applications of 21 petitioners, including same-sex couples, trans people and associations. The judges considered that they were not empowered to make such a decision and referred this responsibility to Parliament, as the government had wanted.
The hopes of the LGBT+ community were high, as India's highest court had issued a landmark ruling in 2018 decriminalizing homosexuality. The only notable progress concerned marriage for couples where one of the members is transgender. The Supreme Court considered that there is no obstacle to transsexual people entering into marriage, provided they are identified as a "man" and a "woman" respectively.
It is unlikely that Modi's government will be tempted to legislate, as the judges are urging. During hearings in April and May, the prime minister's representative had expressed his hostility to same-sex marriage in the name of the unity of the family, arguing that this consisted of a husband, a wife and children. "Any interference in this area (...) would completely upset the delicate balance of laws relating to the individual in the country and the values accepted by society," he claimed.
"I doubt that the BJP [ Modi's Bharatiya Janata Party] would even want the issue to be debated in Parliament, let alone passed into law," commented Shashi Tharoor, an MP for Congress, the main opposition party, speaking after the decision.
However, the debates before the high court had been of high quality in a rather calm atmosphere, very different from the demonstrations that had accompanied the adoption of the same-sex marriage law in France.
The five judges who reviewed the applications were divided. They each read out their position before announcing a joint decision. While the petitioners demanded that LGBT+ couples be granted the same rights as heterosexual families in terms of adoption, insurance and inheritance, on the basis of the principle of equality of citizens, Chief Justice Dhananjaya Yeshwant Chandrachud argued that there is no fundamental right to marriage. However, he insisted on the country's duty to grant some form of recognition to same-sex relationships, and to protect them against all forms of discrimination. "I didn't expect the judgment to be very good, but it's much worse than I expected," said Uday Raj Anand, one of the petitioners.
Despite the decriminalization of homosexuality in India, the lives of couples remain exposed to family and social violence. With the recognition of marriage, petitioners and militant associations hoped to strengthen their protection.
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