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SC Upholds Queer Rights but Defers Same-Sex Marriage Legalization Decision to Parliament

October 17, 2023
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India’s Supreme Court has declined an appeal to legalise same-sex marriages in a blow for LGBTQ rights in the world’s most populous country.

A five-judge bench announced the ruling on Tuesday after hearing arguments in the case between April and May.

Chief Justice Dhananjaya Yeshwant Chandrachud said on Tuesday that it was outside the court’s remit to decide the issue and that parliament should write the laws governing marriage.

“The court, in the exercise of the power of judicial review, must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain,” Chandrachud said.

However, Chandrachud said the state should still provide some legal protections to same-sex couples, arguing that denying them “benefits and services” granted to heterosexual couples violates their fundamental rights.

“Choosing a life partner is an integral part of choosing one’s course of life,” he said.

“Some may regard this as the most important decision of their life. This right goes to the root of the right to life and liberty under Article 21 (of India’s constitution).”

Chandrachud said the government should also take steps to ensure LGBT people do not face discrimination, including by establishing hotlines and safe houses for those who are vulnerable and ending medical procedures that aim to change gender identity or sexual orientation.

The court’s ruling follows a petition arguing that the failure to recognise same-sex unions violated LGBTQ people’s constitutional rights.

India’s Bharatiya Janata Party government, led by Prime Minister Narendra Modi, opposed the petition, arguing the issue should be left to parliament and that the appeal represented an urban and elitist perspective.

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