Same-sex couples face discrimination because they are not legally permitted to marry – but the legislature, not the judiciary, can provide them relief. This was the broad theme of the judgment delivered by the Supreme Court five-judge constitution bench on Tuesday.
The bench – comprising Chief Justice DY Chandrachud and Justices SK Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha – had heard a batch of petitions in April and May demanding marriage equality for the queer community.
The judgement includes four opinions. All of them pay lip service to the idea of queer rights but offer little in terms of the actually achieving those rights. The only noteworthy change introduced in the order is its affirmation that transgender people can marry under India’s existing marriage laws.
Of the four opinions, the one by Bhat, on behalf of himself and Kohli, is the majority opinion since it is also fully endorsed by Narasimha’s opinion. As per judicial custom, the directions contained in the majority opinion are what the state is obliged to follow.
The opinions by Chandrachud and Kaul, in consonance with each other, differ from the majority on two key areas: the legal recognition of same-sex unions, and adoption by same-sex couples. These minority opinions, which are not legally enforceable, direct the state to legally recognise same-sex unions and interpret the Adoption Regulations, 2022, to facilitate adoption by same-sex couples. The majority opinion, however, sticks to the status quo on both these points.
Scroll breaks down the major themes covered by all four opinions, as well as where they agreed and disagreed.
Marriage is not a fundamental right in India
The main contention of the petitions was that individuals have a fundamental right to marriage. However, all four opinions unanimously agree that this is not a fundamental right in the Constitution.
However, all four opinions emphasised that members of the queer community, just like every other individual in India, have the right to cohabit and form intimate partnerships with any person of their choice. The state is obligated to protect them if they face any harassment or threats for their choice of partner. This is a settled legal position that flows from the Supreme Court’s landmark judgement in Navtej Singh Johar versus Union of India in 2018 in which the court decriminalised same-sex relations. This means that the court was not saying anything new on Tuesday.
Bhat’s majority opinion contends that the state only regulates marriages but their source is external to the state and predates it. Therefore, the state’s power to regulate marriages “does not sit easy with the idea of marriage as a fundamental right”. Bhatt said that the court cannot compel the state to create an entire institution, as the petitioners sought, since that would be beyond the judiciary’s competence in relation to the other two branches of the state.
Narasimha, in his opinion, said that the right to marriage is not a fundamental right but simply a statutory right that flows from a legally enforceable, customary practice.
Chandrachud too said that there is no jurisprudence in India to make the case that there is a fundamental right to marriage. Referring to some previous judgments that affirmed inter-caste and inter-faith marriages, he qualified them as situations where state or non-state actors had hindered a couple that was entitled to marry. In these cases, the court was relying on the legal conditions for a valid marriage, rather than a higher fundamental right, he said.
Marriage laws cannot be interpreted to include same-sex couples
The petitions had demanded that the Special Marriage Act, 1954, and the Foreign Marriage Act, 1969, either be interpreted to include same-sex marriages or be declared unconstitutional for being discriminatory towards same-sex couples. All four opinions disagreed with these contentions.
In India, religious groups have their own “personal laws” that govern matters such as marriage, divorce and succession. The Special Marriage Act enables heterosexual couples to enter into civil marriages regardless of the religion each follows. The Foreign Marriage Act recognises marriages solemnised outside India between Indian citizens or an Indian citizen and a foreign national.
Both statutes use gender-specific provisions that preclude the possibility of same-sex marriage.
All four opinions agreed that interpreting the two laws to make their provisions gender-neutral would be a complex exercise. That would also entail changes in other associated laws dealing with allied matters such as inheritance as well as “personal laws” to which the Special Marriage Act makes references in its provisions. The legislature, not the judiciary, is best-suited to carry out such a complex exercise, all four argued.
Chandrachud wrote that in light of the court’s institutional limits in entering into the realm of the legislature, it would be futile for it to try to determine whether the Special Marriage Act is unconstitutional since the court could not grant an effective solution to same-sex couples looking to marry.
Kaul expressed concern that “tinkering with the scope of marriage” under the act could have a “cascading effect” on the other laws and regulations over which the entitlements deriving from marriage are spread out.
Bhat wrote, for himself and Kohli, that the Special Marriage Act is solely meant to facilitate marriage between inter-faith heterosexual couples. Since its objective is clear, it could not be attacked or struck down as unconstitutional for omitting same-sex couples in its ambit.
He also noted the difficulty of including same-sex couples within the act: it would entail creating a parallel code and a “new universe of rights and obligations” covering, among other things, conditions of marriage eligibility conditions for parties, grounds for divorce, alimony and maintenance.
Both Chandrachud and Bhat highlighted the fact that all reforms to marriage law in India’s history had come from the legislature and never from the judiciary.
Right of transgender persons to marry upheld
The only meaningful victory for the petitioners came from the unanimous affirmation of the bench that transgender persons have the right to marry under the existing legal framework governing marriages in India.
While the Madras High Court had, in 2019, allowed the registration of marriage between a cisgender man and a transgender woman under the Hindu Marriage Act, 1955, the legal position on this was not clear. The Union government had contested this, arguing before the Supreme Court that marriage under the existing laws was envisioned as only being between biological men and women.
However, this contention was rejected by all four opinions. Chandrachud clarified that no law governing marriage expressly states that the bride or wife must be a biological or cisgender woman and the bridegroom or husband must be a biological or cisgender man. He also referred to the recognition of marriages between cisgender and transgender individuals already existing in states such as Kerala.
Only heterosexual couples can adopt
The petitioners had argued that the Adoption Regulations, the rules that govern adoption in India, were discriminatory towards same-sex couples since they only permit couples who are married to adopt children. Since only heterosexual couples can marry, same-sex couples were effectively barred from adopting children. There is a provision in the regulations to allow a single person to adopt a child. But even if one of the members of a same-sex couple adopts a child and raises her with their partner, the three would still not be a family in the eyes of the law.
Moreover, the Union government’s Central Adoption Regulation Agency had in 2018 issued a circular, which it reiterated in 2022, that live-in couples are not permitted under the regulations to adopt through the single adoptive parent route.
On this point, the majority opinions differed from the minority opinions.
Bhat, for himself and Kohli, said that the Juvenile Justice Act, 2015, which is the parent legislation of the regulations, envisaged adoption only by married couples. Thus, it precluded even unmarried heterosexual couples from adopting children. He reiterated his rationale for leaving the Special Marriage Act alone, stating that reinterpreting the regulations to include same-sex couples as well as unmarried heterosexual couples would have unintended consequences. The judiciary should not venture into such policy terrain, he said.
However, he recommended that the state amend the regulations after undertaking an in-depth study to analyse the consequences of making adoption more inclusive. At the same time, he forbade the state from making the regulations more exclusionary on the grounds of sexual orientation.
This was endorsed by Narasimha.
On the other hand, Chandrachud held that adoption by married couples is not a statutory requirement under the Juvenile Justice Act. He declared that the Central Adoption Regulation Agency’s circular was unconstitutional because it is discriminatory. He directed that the regulations be interpreted in a manner to enable adoption by unmarried couples of any sexual orientation.
He pointed out that while there is no fundamental right to adoption, the petitioners’ case was that the regulations were discriminatory towards the queer community by disproportionately affecting them.
This was entirely endorsed by Kaul. However, since this is a minority opinion, it is not enforceable.
Chandrachud’s logic, if extended to the Special Marriage Act, could also have been used to classify that the act discriminatory and reinterpret it to make it gender-neutral. However, in the case of the act, both Chandrachud and Kaul took a different, more conservative position.
No legal recognition for same-sex couples
The other key point of difference between the majority and minority opinions was over legally recognising same-sex couples and granting them partnership rights in law.
On this, Chandrachud’s opinion was somewhat vague. While he advocated that the state must recognise the “bouquet of entitlements which flow” from a same-sex union, he did not specify what these entitlements are or how the state is to provide them.
Kaul was slightly clearer on this, but not by much. He advocated for same-sex and heterosexual couples to be considered equal, both in terms of recognition and, consequently, benefits. By calling for the meaningful realisation of the right to enter into such an arrangement, “whether termed as marriage or a union”, Kaul was perhaps entreating the state to consider granting civil union status to same-sex couples.
This was not accepted by the majority opinions.
Bhat wrote that there is no obligation on the state to recognise same-sex unions, unless by law. He emphasised that the court could not ask the state to create a new social institution.
He said that there is no jurisprudence stating that the absence of law may be considered as discrimination under the Constitution. He pointed to a range of options available to the state to legally recognise same-sex unions such as through the Union or state governments changing marriage laws or granting them civil union status. Such “questions of such polycentric nature” are best left to the wisdom of the other branches of the state, which “can undertake wide scale public consultation, consensus building and reflect the will of the people, and be in their best interest”, he said.
Agreeing with him, Narasimha wrote that such “polycentric decisions” could not be rendered by the judiciary. The court, by mandating the state to grant legal status to same-sex unions, would be violating the separation of powers doctrine, he wrote. A review of the legislative framework would require a deliberative and consultative exercise that the other branches of the state are constitutionally tasked to undertake, he wrote.
The onus is now on the Union government
Both the majority opinion by Bhat and the minority opinion by Chandrachud essentially put the ball in the court of a high powered committee that the Union government has agreed to constitute to define and elucidate the scope of the entitlements of queer couples who are in relationships. It is not clear whether this committee has been formed yet. The judgement only refers to the government’s assurance that it will form such a committee, rather than directing it to form the panel and deliver its recommendations in a time-bound manner.