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Queer in India: Law and Same-Sex Marriage



On the 17th of October, 2023, India's Supreme Court rejected the legalisation to legalise same-sex marriage in the country. The justices heard twenty-one petitions launched in a bid to produce a positive result for the LGBTQ+ community. The result had the potential to evoke historic change in India's accessibility to human rights for all in society but especially those who are queer. However, despite some promising comments from the five judges on the board, the petitioner's pleas were ultimately unsuccessful. 


Denial from India's top court means that legislative responsibility will now be passed back to the Indian Parliament. The Chief Justice reiterated the duty of Parliament, saying, "this court can't make law. It can only interpret it and give effect to it." 


Ultimately, this decision only causes further stagnation in the journey towards equal rights for all, including the rights to marriage and a family, which, of course, should not be denied on the grounds of one's sexuality or gender expression.  


Outside the court, many watched in anticipation, with the result producing mixed responses and stirring up an array of emotions. The marriage laws in India currently bar same-sex couples from benefiting from marital policies around things like adoption, tax, inheritance and insurance. Therefore, it is understandable that for many, the denial of same-sex marital rights caused huge disappointment not only romantically but also politically. Because of this verdict, queer couples do not enjoy the same rights as other members of civil society in India.  


However, for others, it was still a step in the right direction, building upon the progress already established in India largely due to Supreme Court intervention. For example, one bystander named Faraz said the verdict was "not a loss". 


Why was Faraz's response to the verdict optimistic despite the disappointment? Considering that it was only in 2018 that the Supreme Court Of India decriminalised consensual same-sex intercourse, this conversation alone is a move in the right direction. It is staggering how recently that ruling was made. It frames the October verdict in a different light, as a vote in the Supreme Court for same-sex marital rights would have been unheard of even ten years ago. 


The decriminalisation of same-sex relations marked a massive shift in public opinion towards non-heterosexual individuals across the Indian landscape. However, the denial of same-sex marriage is a missed opportunity. It had the historic potential to completely transform the rights and experiences of all members of Indian society.  


To discuss the current state of same-sex rights in India at present, it is crucial that the diverse – and at times intersectional – context of India's history is unpacked. The nation's historic relations with the LGBTQ+ community interweave religious, spiritual, and political topography that gives rise to enormous complexity. The relationship people with the LGBTQ+ community is diverse and tinged by its history, differing between the private and public spheres. 


In this series, I will explore the influence religion has on the conversation today (particularly Hinduism), alongside the spiritual beliefs associated with the trans community in India. I will also examine the aforementioned contrast in the representation and treatment of queer people in the private and public spheres. Finally, I will unpack the influence of British Colonialism to reveal the lasting impact it has made on Indian culture and the rights of the LGBTQ+ community in the nation. It is a complex story that passes between the courts, policy, religion, and customs.


The journey towards equality and recognition for the LGBTQ+ community in India is not just a matter of changing laws, as we will see.



Image: AP/via France 24

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