India’s top court has refused to legalize gay marriage. India’s chief justice DY Chandrachud said on Tuesday that it is up to Parliament to legalize same-sex marriages. He also expressed that he believes the government should protect the rights of India’s LGBTQ+ population and end discrimination against them.
Earlier this year, 20 petitions that aimed to legalize same-sex marriage went to India’s five-judge bench. Chandrachud said the justices had trouble coming to an agreement regarding “on how far we have to go” on same-sex marriages.
“This court can’t make law. It can only interpret it and give effect to it,” the chief justice said, highlighting that it is up to Parliament to make a decision to legalize gay unions in India.
India’s conservative government called the union between a man and a woman, “part of the foundation of the state.” Prime Minister Narendra Modi argued to preserve marriage and that those petitioning for the legalization of same-sex marriage were promoting “urban elitist views.”
“The judgment is extremely disappointing,” Anjali Gopalan, a petitioner in the case and the head of the Naz Foundation, told The New York Times.
Though the ruling is undoubtedly disappointing, it offers some unexpected glimmers of hope in the way of same-sex marriage in India. According to the NYT, The judges ruled that transgender people can marry other transgender people, and expanded the definition of discrimination.
Over the past decade, Indian LGBTQ+ citizens have celebrated victories, like the decriminalization of of homosexuality in 2018. Before then, in India, gay sex was punishable by up to 10 years in prison. The colonial era law was created in 1861, directly harming and discriminating against India’s gay community almost 160 years.
Not only did the Supreme Court decide to decriminalize gay sex in 2018, every single person on the Supreme Court was in agreement at the time, on the basis that discrimination against sexual orientation is unconstitutional.