Petitions seeking recognition of same-sex marriages in India went to the constitutional court

Participants walk the streets during the LGBTQI+ Pride Parade in Nagpur.

Azhar Khan/NurPhoto via Getty Images

  • Petitions to legalize same-sex marriage in India have been referred to a larger constitutional court.
  • This comes a day after the government announced it was against the marriages.
  • A special constitutional court consisting of 5 judges will make a decision on this issue.

India’s top court on Monday referred petitions seeking legal recognition of same-sex marriage to a larger, constitutional bench next month, a day after the government said it opposed unions.

LGBTQ rights in India have expanded in recent years, and if the current case is successful, the country would become only the second Asian jurisdiction after Taiwan to recognize same-sex unions.

On Sunday, the conservative government of Hindu nationalist Prime Minister Narendra Modi told the Supreme Court that it opposed same-sex marriage and that any changes were up to parliament, not the courts.

His submission stated that “any interference… would wreak utter havoc on the country’s delicate balance of personal laws and accepted societal values.”

It added:

Living together as partners and having sex by individuals of the same sex… is not comparable to the Indian family unit of husband, wife and children.

On Monday, the Supreme Court transferred the case to a five-judge special constitutional court.

It will decide whether recognition of same-sex marriage is constitutionally valid.

It is expected that the next court session will take place on April 18, with a live broadcast of the trial.

“We are very hopeful… We are very pleased that this issue has gone to the Constitutional Court because we believe it is a matter of fundamental and constitutional rights,” said Niharika Karanjavala, a lawyer representing one of the petitioners.

In 2014, transgender people were officially recognized as a “third gender,” and three years later, India’s highest court recognized sexual orientation as protected by the fundamental right to privacy.

In 2018, a landmark ruling overturned a colonial-era law that banned gay sex, and last year a court ruled that unmarried partners or same-sex couples are entitled to social benefits.

But the rights of the LGBTQ community remain a sensitive topic in the largely conservative and deeply religious Indian society.

Activist Anjali Gopalan said.

What happened with the 2018 ruling is that homosexuality was decriminalized. It means that the community… is no longer seen in the same bracket as criminals, murderers, thieves and all that.

“However, the community has not been granted other rights, such as rights that we as citizens of this country take for granted, the most obvious being the right to marry.”

Abhay Dang, one of the petitioners, told AFP this year that he and his partner were “mere strangers” in the eyes of the law, despite a wedding celebration in 2021.

“Whatever basket of rights marriage provides that heterosexual couples take for granted, for us same-sex couples, we didn’t have those rights,” he said.

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