Supreme Court Refuses To Recognise Same-Sex Marriage, Leaves Matter To Parliament [VERDICT EXPLAINED]

'Supreme Court cannot make but can enforce laws... It is for the Parliament to decide whether a change in the regime of the Special Marriage Act is needed' CJI Chandrachud implies.
Supreme Court Refuses To Recognise Same-Sex Marriage, Leaves Matter To Parliament [VERDICT EXPLAINED]

A five-judge bench headed by Chief Justice of India DY Chandrachud, on Tuesday, 17 October, refused to recognize the right of same-sex couples to enter into marriages or have civil unions.

Chief Justice of India DY Chandrachud, reading out the judgment in the batch of petitions, said that the court cannot "strike down the provisions of Special Marriage Act (SMA) or read words differently."

In May 2023, a five-judge Constitution Bench led by the Chief Justice of India had reserved its judgment on the case after a 10-day hearing. Others in the bench include Justices Hima Kohli, Sanjay Kishan Kaul, S Ravindra Bhat, and PS Narasimha.

  • The pleas challenge the provisions of the Special Marriage Act 1954 (SMA), the Hindu Marriage Act 1955, and the Foreign Marriage Act 1969

  • The petitioners argued that marriage brings with it several rights, privileges, and obligations that are protected by the law

The Court said that the law as it stands today does not recognise the right to marry or the right of same-sex couples to enter into civil unions, and that it is upto the Parliament to make laws enabling the same.

The Court also held that the law does not recognise rights of same-sex couples to adopt children.

The judgment was rendered by a Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan KaulS Ravindra BhatHima Kohli and PS Narasimha.

The bench led by CJI Chandrachud delivered four judgements.

The majority opinion was delivered by Justices Bhat, Kohli and Narasimha with Justice Narasimha delivering a separate concurring opinion. CJI Chandrachud and Justice Kaul delivered separate dissenting judgments.

3 judges oppose, 2 in favour

All the judges were unanimous in holding that there is no unqualified right to marriage and same-sex couples cannot claim that as a fundamental right.

The Court also unanimously turned down the challenge to provisions of the Special Marriage Act.

The majority of Justices Bhat, Kohli and Narasimha also held that civil unions between same sex couples are not recognised under law and they cannot claim right to adopt children either.

However, CJI Chandrachud and Justice Kaul in their separate minority opinions ruled that same-sex couples are entitled to recognise their relationships as civil union and can claim consequential benefits, and are allowed to pursue adoption.

Read on for simpler understandings on the judgements.

The majority opinion rendered by Justice Bhat held the following:

  • There is no unqualified right to marriage.

  • Entitlement to civil unions can be only through enacted laws and courts cannot enjoin such creation of a regulatory framework.

  • Queer persons are not prohibited in celebrating their love for each other, but have no right to claim recognition of such union.

  • Queer persons have the right to choose their own partner and they must be protected to enjoy such rights.

  • Same-sex couples do not have right to adopt children under existing law.

  • Central government shall set up a high-powered committee to undertake study of all relevant factors associated with same-sex marriage.

  • Transgender persons have the right to marry.

The following are the highlights of CJI Chandrachud's minority judgment:

  • Queerness is not urban or elite.

  • There is no universal concept of marriage. Marriage has attained the status of a legal institution due to regulations.

  • The Constitution does not grant a fundamental right to marry and the institution cannot be elevated to the status of a fundamental right.

  • Court cannot strike down provisions of the Special Marriage Act. It is for Parliament to decide the legal validity of same-sex marriage. Courts must steer clear of policy matters.

  • Freedom of queer community to enter into unions is guaranteed under the Constitution. Denial of their rights is a denial of fundamental rights. Right to enter into unions cannot be based on sexual orientation.

  • Transgender persons have the right to marry under existing law.

  • Queer couples have the right to jointly adopt a child. Regulation 5(3) of the Adoption Regulations as framed by the Central Adoption Resource Authority (CARA) is violative of Article 15 of the Constitution for discriminating against the queer community.

  • Centre, states, union territories shall not bar queer people from entering into unions to avail benefits of the state.

Among other developments during the course of the hearings, the Court noted that:

The US Supreme Court's decision that there was no Constitutional right to abortion was incorrect in the Indian context, and that an individual's right to adopt was not affected by their marital status in India.

Recognising same-sex unions was up to the Legislature, but the government may have to ensure that same-sex couples are given social and other benefits and legal rights without the label of marriage.

Courts cannot decide on issues based on young people's sentiments.

Marriages are entitled to constitutional and not just statutory protections.

SC Issued Directives to the Govts Across India

The Centre, state governments, and union territories are directed to ensure:

  • Queer community is not discriminated against.

  • There is no discrimination in access to goods and services.

  • Sensitise public about queer rights

  • Create hotline for queer community

  • Create safe houses for queer couples

  • Ensure inter-sex children are not forced to undergo operations.

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