India’s missing colours

The verdict on same-sex marriage has snitched the Indian queer community’s wish to live with dignity.


The verdict on same-sex marriage has snitched the Indian queer community’s wish to live with dignity. PHOTO: REUTERS/THE KATHMANDU POST

October 20, 2023

KATHMANDU – The Indian Supreme Court on Tuesday disappointed a legion of Indians awaiting a long-overdue legalisation of same-sex marriage. The verdict by a five-member panel of judges, led by Chief Justice DY Chandrachud, has shrugged its shoulders, saying formulating laws on marriage is the prerogative of Parliament and state legislatures. The ruling also said the Constitution of India did not guarantee the fundamental right to marriage for same-sex couples under existing law. This essentially means that legalising same-sex marriage in India is a distant dream as long as the Narendra Modi-led government is in place, as it is the main force opposing the same.

As countries across the globe move towards legalising same-sex unions, the verdict by India’s top court is certainly regressive. If not too far, the apex court of arguably the biggest democracy in the world could have just looked north to Nepal, where its counterpart has already legalised same-sex marriage. Nepal’s is not an ideal situation, of course—only recently, two lower courts denied a couple registration of their marriage, citing a lack of legislative change regarding the same despite the Supreme Court’s interim order legalising same-sex marriage. As the court fell short of mandating the government to take such a step, the change expected by the LGBTQI+ community and their supporters is hard to come by.

The only silver lining in the Indian top court’s verdict is its recognition of same-sex marriage as a human right. The unanimous verdict said it was in favour of people’s right to love anyone they liked and feel human, recognised queerness as a natural phenomenon, and even asked the government to ensure that “queer community is not discriminated against because of their gender identity or sexual orientation.” Led by a chief justice who has often made strong statements in defence of democracy and human rights in the Modi era, the bench that came up with the verdict seemed to look at the same-sex marriage case with compassion. But its supposedly humanist calls are certain to fall on deaf ears, considering how the Modi government continues to consider such a union as a fantasy of the English-speaking urban elite and against “Indian culture”. For the Indian government, the idea of marriage is hinged upon the union between a man and woman, whose ultimate goal is procreation.

The journey from recognition of same-sex marriage as a human right and a legalisation of the same through legislative action seems to be quite arduous. Despite its seemingly compassionate phrasing, the verdict has failed to provide hope to the Indian queer community to live with dignity. And with this, India has once again failed to recognise an estimated 2.5 million LGBTQI+ people as equal humans. Moreover, the Indian court’s failure to give a more positive verdict has pushed back the South Asian public’s hopes of creating a transnational community that celebrates and humanises a multiplicity of sexual orientations.

scroll to top