India’s Supreme Court ruled mostly against LGBT rights advocates in the case Supriyo v. Union of India, ruling that same-sex couples do not have a right to marry under the Special Marriages Act, 1954. In addition, the majority ruled against a formal right of same-sex couples to civil union absent legislation, as well as a right to adopt, and ruled that the courts must leave the issue to Parliament. However, the majority did rule that same-sex couples have the right to choose their own partner and that transgender people in heterosexual relationships have the right to marry their partner.
The minority on the court also issued a dissent which also ruled against the right to marry under the Special Marriages Act but did recognize the right to civil union and the right of transgender people to marry.
The ruling is a setback for the same-sex couples in India, who awaited the ruling after years of litigation at the state level. However, observers noticed that many of the details rehashed prior favorable rulings, including Navtej (which struck down Section 377), NALSA (which declared transgender people a third gender and affirmed their rights), Deepika Singh (which expanded the definition of family to include unmarried couples, queer relationships and single parents), and Puttaswamy (aka the “right to privacy verdict”). At the very least, it is the firmest statement yet by the Supreme Court of India on the rights of same-sex couples, even as it lacks anywhere near the punch or power of landmark decisions from other countries of similar import, such as Obergefell v. Hodges (2015).
The Same-sex couples committee?
In addition, in the absence of marriage under the Special Marriages Act, the Court unanimously called on the federal government to create a committee under the Cabinet Secretary to detail and advise the government on the rights and privileges of same-sex couples, an act which was promised by the Solicitor General to the Court during oral arguments.
There is no telling as to what the committee will look like, or what the scope of the committee’s powers may be. At the very least, it could look like the National Council for Transgender Persons, which was established under the Transgender Persons (Protections of Rights) Act, 2019, which was passed largely to fulfill some of the letter of the 2014 NALSA decision.
Possible rights within the scope of the proposed committee:
- partnership registration of some kind
- Joint residency in housing
- Joint custody and adoption
- Joint decision-making in healthcare of partner
- Inheritance and property
- Power of attorney and judicial proceedings
- Finance
- Insurance
- Employment benefits for partners
- Protection from spousal violence by partners
- Protection from violence and interference by non-partners
- Rights of transgender partners of the same gender
Advocates on the ground are not holding their breath for such a committee to be created or sustained by the Modi government, which came out against the Supriyo petitioners and sought to convince the court to rule the entire case inadmissable and non-justiciable.
Thoughts about this case
- Advocates are rightly heated by this decision and by the suspense in which they were held for most of the year.
- The decision closes the door to litigation as an avenue for marriage rights for same-sex couples in India, meaning that LGBT groups must intensely lobby federal and state governments for expansion of their rights for the foreseeable future.
- This will definitely make same-sex couples a football for political parties and lobbying groups to play. Expect heavy politicization and maybe polarization.
- Openly-LGBT people will have to run for office and advocate for themselves in the media.
- Are there any Indian organizations focused on advocating for LGBT marriage and family rights?
- This campaign for marriage rights will take several more years to bear fruit.
- No telling if this ruling will have an effect on marriage litigation or even legislation in other countries in the way Obergefell (may have) had. Obergefell itself was cited by the Supriyo petitioners, while the Dobbs decision on abortion was criticized by the justices during Supriyo‘s oral arguments regarding justiciability on social issues.
