On Tuesday (17th October), a 5-judge Constitutional Bench of the Supreme Court refused to recognise same-sex marriage in India in a split 3-2 verdict.
The matter was heard by Chief Justice of India (CJI) DY Chandrachud, Justices S Ravindra Bhat, Sanjay Kishan Kaul, Hima Kohli and PS Narasimha for a total of 10 days, following which they reserved their verdict on 11th May this year.
Although the petitioners initially challenged the Hindu Marriage Act, the Foreign Marriage Act and the Special Marriage Act (SMA), the apex court decided to not touch the personal laws and confine the case to the inclusion and recognition of same-sex marriages under the SMA [pdf].
Supreme Court on same-sex marriages
The petitioners had argued that the legislation in its current form discriminates against non-heterosexuals (referring to LGBTQIA+) and demanded social security and welfare measures for ‘same-sex’ and ‘queer’ couples.
Dissenting Verdict
At the very onset, CJI DY Chandrachud noted that marriage is an evolving institute and that the Parliament has brought in laws from time to time to reflect changes (despite opposition from several sections of the society).
He conceded that marriage is not a ‘fundamental right’ but held that restrictions on same-sex marriages would violate Article 15 (protection against discrimination) and Article 21 (protection of life and personal liberty) of the Indian Constitution.
The CJI stated, “The need to form part of family is a core part of the human trait and is important for self-development…For the full enjoyment of such relationships… such unions need recognition and there cannot be denial of basic goods and services. The State can indirectly infringe upon the freedom if it does not recognize the same.”
“The ability to choose a partner goes to the root of the right to life and liberty under Article 21…This Court has recognized that queer persons are not discriminated upon and their union cannot be discriminated against based on sexual orientation and material and services flowing to heterosexual couples and denied to them will be a violation of the fundamental right. The word sex cannot be read without social and historical contexts. Restriction to their union based on sexual orientation will be a violation of Article 15 of the constitution,” he added.
Dy Chandrachud further stated that sexual orientation cannot be a ground to deny ‘union’ (marriage) and ruled that both queer and trans individuals have the right to marry under the existing law.
His dissenting verdict was also supported by Justice SK Kaul, who too ruled in favour of recognition of same-sex marriages. “I recognize this as civil unions. I agree with the judgement of CJI…These unions are to be recognized as a union to give partnership and love…Legal recognition of same sex unions is a step towards marriage equality…Let us preserve the autonomy so long as it does not impinge on others’ rights,” he observed.
Majority verdict
The majority verdict against the recognition of ‘same-sex marriage, under the Special Marriage Act (SMA), came from Justice Ravindra Bhat and Justice PS Narasimha. Justice Hima Kohli supported the judgement of Justice Bhat.
Justice Ravindra Bhat upheld that marriage in itself is not a fundamental right and that the institution has been historically based on customs such as Muslim personal law, the Shariat Act, and the Karaj Act.
“Civil marriage and such relationships cannot exist in absence of a statute. There is a paradox which runs deep in court’s mind and the intervention of State has to be through State action and be compelled by the agency of this court,” he observed.
Justice Bhatt added that queer people have the right to choose a partner, enjoy privacy and live with dignity but their marriage cannot be recognised in the absence of codification.
“Right to cohabit cannot lead to setting up of an institution…Ordering a social institution or re-arranging existing social structures would require the construction of a new code and also require marriage laws concerning alimony etc…We cannot agree with CJI tracing union to freedom of speech and expression and the positive obligations,” he ruled.
He concluded, “What petitioners seek is not lost on us… desire for social acceptability is known but the means to achieve the means should be constitutionally sound. If we leave it to the wind then it may have untold consequences and while moulding relief, we should not be led astray as we are blinded by the glow.“
Justice PS Narasimha also agreed with the verdict of Justice Ravindra Bhatt. “I agree with the opinion of Justice Bhat. Marriage equality for LGTBQIA never arose in this court and thus no precedent,” he noted.
He also conceded that marriage is not a fundamental right and that the social institution is ‘conditioned with legislative intervention’.
Justice PS Narasimha also added, “CJI locates right to union in Article 19, 21 of the constitution. For me, there is no such right in these articles. CJI recognizes tangible and intangible benefits… in other words, marriage however fundamental for life does not make it fundamental and similar with civil unions.. thus i dont agree with the same.”
Conclusion
As such, the all-out effort to legalise ‘same-sex marriage’ and its inclusion within the ambit of the Special Marriage Act was turned down by a 3-2 verdict.
Supreme Court on Adoption
The apex court also decided on whether same-sex couples could legally adopt a child under the existing framework and guidelines of Central Adoption Resource Authority (CARA), a statutory body under the Union Ministry of Women & Child Development.
Dissenting judgement
The Chief Justice of India ruled in favour of adoption for same-sex and queer couples in his dissenting judgement. He criticised the guidelines laid down by the CARA for supposedly perpetuating stereotypes against the queer community
“CARA regulation 5(3) discriminates between partners in atypical unions. It will disproportionately effect non heterosexual couples and thus an unmarried heterosexual couple can adopt but this is not the same for the queer community,” he stated.
The CJI further added, “The law cannot make an assumption about good and bad parenting and it perpetuates a stereotype that only heterosexuals can be good parents. Thus the regulation is held to be violative of (the rights of) the queer community.”
It must be mentioned that CARA Regulation 5(3) prevents the adoption of a child by couples unless they can exhibit that they have a stable marital relationship of at least 2 years. The exceptions include relatives and step-parents only.
Justice DY Chandrachud ruled that such a provision somehow violated Article 15 (protection against discrimination) of the Indian Constitution. Justice SK Kaul also agreed with his verdict.
Majority judgement
The remaining three Judges of the Constitution Bench ruled against adoption of a child by same-sex and queer couples.
At the very onset, Justice Ravindra Bhat made it clear, “We disagree on the Adoption aspect (with the CJI). It is not to say that unmarried or non-heterosexual couples are to be parents…when a couple separates a de facto family often plays out. “
He added, “Given the objective of section 57, State as parens patriae has to explore all areas and ensure all benefits reach the children at large in need of stable homes…To create an overarching obligation upon the state is not rooted in any past decision or jurisprudence.
He along with Justice PS Narasimha refused to declare CARA regulations as void. Justice Hima Kohli agreed with Justice Bhatt’s view.
Conclusion
Much to the dismay of the petitioners, the Supreme Court rejected the demand of same-sex couples to adopt children in a 3-2 split verdict.
Apex Court on the validity of Special Marriage Act
Chief Justice of India DY Chandrachud ruled, “If it is held void, it will take India back to the pre-independence era, clothed in social inequality and religious intolerance and eradicating one ill at the cost of another.” He also added that it is important for the court to steer away from ‘judicial legislation.’
The CJI noted that only the Parliament can bring about change in the Special Marriage Act. “Whether a change in SMA is needed is for the Parliament to ascertain and the Court must be careful to enter into the Legislative domain,” he concluded.
Justice SK Kaul said, “SMA postulates a special form of marriage and thus it provides a secular form of marriage…I agree that entitlements flowing from marriage are regulated by regulations and laws and tinkering with SMA will have a cascading effect. I agree with SG Mehta.”
Justice PS Narasimha and Justice Ravindra Bhat also upheld the constitutionality of the Special Marriage Act.
“A general interpretation of SMA is not equitable at times and can lead to women being led to vulnerabilities. The purpose of terms like wife, husband, etc. is aimed to protect the vulnerable and the women facing domestic violence is there to ensure they receive justice,” Justice Bhat ruled.
“Similarly, issues like bigamy or the prohibited relationships use gendered terms. Thus interpreting the SMA as desired would render it unworkable,” he added.
Conclusion
All the Judges of the Constitutional Bench upheld the validity and constitutionality of the Special Marriage Act and its provisions.
Directives issued by the Supreme Court to the government
Although the majority of Judges ruled against the recognition of same-sex marriages (3:2) in the current framework, all of them sought the intervention of the Legislature to protect the dignity, privacy and right to choice of same-sex and queer couples.
DY Chandrachud
The Chief Justice of India directed the Union, States, and Union Territories to ensure that the queer community is protected against discrimination in the supply of goods and services. He added that the public must be sensitised to prevent harassment of any kind.
He called for the establishment of safe houses in all areas, the prevention of sex change operations for minors and the recognition of individuals as ‘queers’ without the precondition of ‘hormonal therapy’
The CJI also directed the State, Union and UTs to allow queers to avail of all State benefits and asked the police to prevent their harassment, owing to their ‘gender identity.’
He also made references to the Solicitor General Tushar Mehta and the latter’s assurance to set up an expert committee under the supervision of the Union government to provide welfare measures and social security to the queer community.
Justice SK Kaul
The Judge demanded a separate law to tackle the ‘discrimination’ against the LTBTQIA+ community.
He stated, “There needs to be an anti discrimination law and for any discrimination court cannot look at only one form of discrimination. it is needed with a look at the inequalities which has perpetuated and the next step is to examine the framework itself. Legal recognition means social acceptance.. and through legal recognition, queer persons can be seen and heard more.“
Justice Ravindra Bhatt
Justice Ravindra Bhatt, who was part of the majority judgement, directed, “State shall ensure compliance with the judgement that choice of queer to cohabit is not interfered with. State shall take steps that queer and transgender are not subjected to involuntary medical procedures...State shall ensure compliance with the judgement that choice of queer to cohabit is not interfered with.“
Justice PS Narasimha
“A review of the impact of legislative framework in this case requires deliberative exercise and for the same the legislature is entrusted to do so constitutionally,” Justice PS Narasimha ruled.