In its ruling on 17 October, a panel of five judges led by Chief Justice of India DY Chandrachud acknowledged the discrimination faced by the LGBTIQ+ community in the country.
Indian activists of the lesbian, gay, bisexual, and transgender (LGBT) community react after the hearing at the Supreme Court, at the Humsafar Trust in Mumbai, India, 17 October 2023. Source: EPA / DIVYAKANT SOLANKI/EPA/AAP Image
"It (the Supreme Court) can only interpret it and give effect to it,” the judge said, asking the government to establish a committee tasked with examining the rights of the LGBTIQ+ community, including the evaluation of regulations concerning medical, financial and inheritance rights.
In Asia, Taiwan and Nepal are the only two countries which allow same-sex marriage as of this year.
What is the Australian government's stance?
While the United States has claimed to be "closely monitoring follow-up steps" by the Indian government after the ruling, Australia appears to have adopted a cautious approach.
In response to a query about the Australian government's position on the recent ruling, the Department of Foreign Affairs and Trade acknowledged India's Supreme Court decision regarding same-sex marriage in the country.
Signage for the Australian Government Department of Home Affairs is seen in Melbourne, Saturday, January 15, 2022. Source: AAP / JAMES ROSS/AAPIMAGE
"In line with the Universal Declaration of Human Rights, all individuals should be able to enjoy their full human rights regardless of their sexual orientation or gender identity. As we do with all partners, Australia and India engage regularly on a wide range of issues, including on human rights," the spokesperson added.
What does the latest research say?
Based on a recent research conducted across 24 countries by the US-based thinktank Pew Research Center, attitudes toward same-sex marriage exhibit significant diversity globally.
Among the surveyed countries, support for legal same-sex marriage was seen highest in Sweden, where 92 per cent of adults favoured it, whereas in Australia around three-quarters of adults favoured it (75 per cent).
However, in India, 53 per cent of adults said same-sex marriage should be legal, while 43 per cent opposed it.
Expert and community views
According to Biraja Mahapatra, an advocate at the Indian Supreme Court, India is traditionally conservative and generally holds a negative stance toward same-sex relationships.
"A same-sex relationship without consent was a punishable offence under Section 377 of the Indian penal code till 2018," Mr Mahapatra told SBS Hindi.
Biraja Mahapatra, an advocate at the Indian Supreme Court. Credit: Biraja Mahapatra
In November 2022, two same-sex couples in India petitioned the Supreme Court for legal recognition of their marriages, challenging the discriminatory Special Marriage Act.
"This case was part of 21 similar challenges across high courts, which the Supreme Court consolidated and reviewed, focusing on the legality of non-heterosexual unions," Mr Mahapatra explained.
Mr Mahapatra said that while the Supreme Court, through a ruling by five judges, chose not to legalise same-sex marriage, it did acknowledge the marriage of a transgender couple of different genders and discrimination against the LGBTIQ+ community.
"The issue of discrimination came to be a matter of concern as the Supreme Court struggled between two morality aspects – the doctrine of constitutional morality and the doctrine of cultural morality," he said.
India's Supreme Court Credit: Ramesh Lalwani/Getty Images
He further pointed out that the debate would persist as a human rights issue, focusing on the fundamental right to equality.
Elvis Martin, a prominent LGBTIQ+ community advocate based in Melbourne who is a member of the Victorian government's LGBTIQ+ Taskforce, believes Australia is adopting a cautious approach due to its ongoing efforts to foster relations with India.
Elvis Martin, Victorian government's LGBTQIA+ Taskforce member and community advocate. Credit: Elvis Martin
"I've been closely monitoring this case, and I'm somewhat disappointed with the ruling, especially for those who came here seeking asylum and now wish to return to India.
"Nonetheless, I believe that Australia also delayed legalising same-sex marriage, so I find it hard to imagine it happening in India with ease."
He additionally called on the Australian government to address the matter with India, specifically highlighting Foreign Affairs Minister Penny Wong, who has been a vocal supporter of this cause herself.
