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India: Gay marriage recognition referred to high court

March 13, 2023

After the Indian government said it opposes same-sex unions, India's Supreme Court has referred petitions seeking recognition of same-sex marriages to the five judge Constitutional Court.

A young gay couple kiss during the Pride march in Kolkata India in 2022
The Indian Supreme court has referred petitions to recognize same-sex unions to the Constitutional courtImage: Avishek Das/ZUMA Wore/IMAGO

India's Supreme Court passed arguments over granting legal recognition to same-sex marriages to the larger Constitutional Court.

The five judge bench will listen to petitions on April 18 while live streaming the proceedings on its website and YouTube.

The conservative Indian government led by Hindu nationalist Prime Minister Narendra Modi informed the Supreme Court that it is against same-sex marriage and any changes were up to parliament but not the courts.

The government said that "any interference" was likely to result in "complete havoc with the delicate balance of personal laws in the country and accepted societal values.”

Why is the case important?

Seen as a milestone event for the LGBT rights in the country, the case moves to the higher Constitutional Court.

The Supreme Court decriminalized homosexuality in 2018 by doing away with a colonial-era ban on gay sex.

The Constitutional Court will determine whether recognition of same-sex marriage is valid according to the constitution of India.

India's Solicitor General Tushar Mehta, representing the government in court, said, "The parliament will have to debate and take a call whether in the view of societal ethos and several other factors which go into lawmaking, whether we would like this institution to be recognized."

Niharika Karanjawala, a lawyer representing one of the petitioners, said, "We are very pleased that this matter has gone to a constitutional bench as we consider it to be an issue of fundamental constitutional rights.” 

If successful, the country would become only the second Asian country after Taiwan to recognize same sex unions.

 close up of male gay couple hands over rainbow flag.
LGBT activists call for the Indian government to recognize same-sex marriagesImage: lev dolgachov/Zoonar/picture alliance

Strong opposition to a sensitive topic

Same-sex marriage remains a sensitive issue in India and openly speaking about homosexuality remains a taboo for many. India's 1.4 billion people lean socially conservative and religious.

The government urged the Supreme Court to reject challenges to the current legal framework lodged by LGBT couples.

India: Gay couples ask court to recognize same-sex marriage

Recently, more than 15 appeals, some by gay couples, have been filed asking the court to recognize same-sex marriages, triggering a legal face-off with Modi's government.

India recognized transgender individuals as the "third gender” in 2014 and in 2018, the highest court recognized sexual orientation as protected under a fundamental right to privacy.

LGBT activists argue that while the ruling asserted their constitutional rights, it is still unjust that they lack legal backing for their unions.

dmn/ar (AFP, Reuters)