 "In 3:2 verdict, SC bench backs off from recognising same sex marriage")
The Supreme Court on Tuesday refused to recognise same sex marriage, as it lobbed the ball back into Parliament to legislate laws that sanction such unions.
A five-judge constitution Bench comprising Chief Justice of India (CJI) D Y Chandrachud and Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and P S Narasimha gave four separate judgments. The Bench also delivered a 3:2 split verdict against civil union for non-heterosexual couples.
The majority verdict of the court said there are no adoption rights for queer couples. While Narasimha agreed with Bhat and Kohli in not granting the right, Chandrachud and Kaul were in favour.
Bhat said that while a majority on the Bench agreed with the CJI on the right of transgender people in heterosexual relationships to marry according to existing laws, they disagreed with him on the right of queer couples to adopt children.
“This is not to say that unmarried or non-heterosexual couples can’t be good parents…the state as parens patriae has to explore all areas and to ensure all benefits reach the children at large in need of stable homes,” said Bhat.
He added that the State cannot recognise the civil union of queer relationships. “All queer persons have the right to choose their partners. But the State cannot be obligated to recognise the bouquet of rights flowing from such a union. We disagree with the CJI on this aspect,” Bhat said.
He said that denial of benefits such as a provident fund and pension to queer partners may have a discriminatory effect.
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“Addressing these concerns means a range of policy choices and involving multiple legislative architectures. On May 3, the Solicitor General said that a high-powered committee will be formed by the Union to examine these aspects,” he said.
CJI Chandrachud said the Court cannot strike down the Special Marriage Act (SMA) or read words into it due to the institutional limitations. “If the Special Marriage Act (SMA) is struck down, it will take the country to the pre-Independence era. If the court takes the second approach and reads words into the SMA, it will be taking up the role of legislature…This court must be careful to not enter into the legislative domain.”
The CJI added that the right to enter into union cannot be restricted on the basis of sexual orientation.
Justice Kaul, while agreeing with the CJI, said that same sex relationships have been recognised from antiquity, not just for sexual activities but as relationships for emotional fulfilment. “I have referred to certain Sufi traditions... I agree with the judgment of CJI. …the court has been guided by constitutional morality and not social morality. These unions are to be recognised as a union to give partnership and love.”
He disagreed with Justice Bhat that the SMA was enacted with the sole objective of heterosexual marriages. “I have said that the Special Marriage Act is violative of Article 14 (on the right to equality). But there are interpretative limitations in including homosexual unions in it. As rightly pointed out by the Solicitor General, tinkering with the Special Marriage Act can have a cascading effect,” he said.
Kaul added that non-heterosexual and heterosexual unions must be seen as two sides of the same coin. “This moment is an opportunity to remedy the historical injustice and discrimination and thus governance needed to grant rights to such unions or marriages. I wholeheartedly agree with the Chief Justice of India that there is a need for an anti-discrimination law. My suggestions for anti-discrimination law are as follows: it should address intersectional discrimination,” he said.
The court also noted the Centre’s statement that it will set up a high-powered committee to examine the rights and benefits of queer couples.
Echoing the majority view, Justice Bhat summarized: “Consistent with the statement made to the court, the Union will set up a high-powered committee to examine the rights and benefits to queer couples. Transsexual persons in homosexual relationships have the right to marry. CARA (Central Adoption Resource Authority) regulations not void for not allowing queer couples to adopt,” he said.
This means that same-sex couples have been denied joint adoption rights.
Solicitor General Tushar Mehta welcomed the judgment. “I am happy that my stand has been accepted.” He added: “It is an important step in jurisprudential development on the question of separation of powers and provides vivid and eloquent insights into the working of the parliament, the executive and the judiciary whose functions complement each other strictly as per the Constitution.”
Filmmaker Onir, who has directed My Brother Nikhil and Pine Cone dealing with same-sex relationships, said on X: “DISAPPOINTED .... The cis gendered world FAILED to be better humans…what a shame.”
Pink List India, the country’s first archive of politicians supporting LGBTQIA+ rights, said that over the past decade, Parliament had failed to discuss, let alone act upon, the question of marriage equality so the judiciary had to step in. “Now that the judiciary has thrown the ball into the legislature’s court, we must focus on ensuring that our elected representatives are held accountable on the question of equal rights for queer citizens,” it said.
WHAT SC SAID
No
Same-sex marriagesSame-sex civil unionsSame-sex joint adoption rights
YES
Rights of transpeople to marryParliament framing laws for such unions
Centre’s high-powered panel for rights of lesbian, gay, bisexual, transgender, queer, intersex and asexual