The Supreme Court on Tuesday refused to legalise same-sex marriages in India, contending that this issue must be decided by Parliament and that there is no fundamental right to marriage.
A five-judge Constitution bench headed by Chief Justice of India DY Chandrachud delivered its verdict in response to a series of pleas seeking legal recognition for same-sex marriages.
In his order, Justice Chandrachud held that the court can neither strike down nor read words into the Special Marriage Act to include same-sex couples within the ambit of the 1954 law. He left the task of deciding whether same-sex marriages should be given legal status to Parliament.
“If we hold Section 4 of the Special Marriage Act as unconstitutional, it will take the country to the pre-Independence era,” Justice Chandrachud said. “If words are substituted by the court, it will amount to entering into the domain of the legislature.”
He recorded a statement of Solicitor General Tushar Mehta that the Centre will form a committee to decide the rights and entitlements of persons in queer unions.
The chief justice directed the Central and state governments to ensure that members of the queer community are not discriminated against because of their identity. He also directed the authorities to sensitise the public about queer rights, to create a hotline for the queer community, to create safe houses for queer couples and to ensure that inter-sex children are not forced to undergo sex-change operations.
Justice Chandrachud said that homosexuality or queerness is not an urban concept or restricted to the upper classes of society. “People may be queer regardless of whether they are from small towns, urban or semi-urban areas,” he said. “It will be a mistake to conflate the urban with the elite.”
Justice Chandrachud also noted that the institution of marriage has “undergone a sea of change” and it is not static.
“All persons, including queer persons, have the right to judge the moral quality of their lives,” he said. “The meaning of liberty is the ability to be who one wishes to be.”
He also held that transgender persons have a right to marry under the existing laws.
Speaking about adoption rights in the country, Justice Chandrachud remarked that there is no evidence to show that children are safe only with married heterosexual parents. “Marriage alone does not give stability to a household,” he added.
He held that adoption rules violate Article 15 of the Constitution and are discriminatory to the queer community. Unmarried couples, including queer couples, can jointly adopt a child, the court ruled.
The bench, which also comprised Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha, heard arguments in the case between April and May and reserved its judgement on May 11.
What did other judges say?
Justice Kaul agreed with the chief justice’s opinion, saying that same-sex relationships had been recognised from antiquity, not just in terms of sexual activity but as relationships that fostered love, emotional support and mutual care.
“Let us preserve the autonomy so long as it does not impinge on others’ rights,” he observed.
He also said that the state must ensure that queer couples did not face discrimination in accessing basic needs.
The judge also said that the Special Marriage Act violates Article 14 of the Constitution. But he added, “There are interpretative limitations in including homosexual unions in it. As rightly pointed out by the SG [solicitor general], tinkering with the SMA [Special Marriage Act] can have a cascading effect.”
Justice Bhat said that the judiciary cannot add words to the Special Marriage Act. He, however, disagreed with several other points, including giving LGBTQ+ couples the right to jointly adopt children.
The court, he added, cannot create a legal framework for queer couples because that is the job of the legislature. “All queer persons have the right to choose their partners,” Justice Bhat said. “The State cannot be obligated to recognise the bouquet of rights flowing from such a union.”
Justice Narasimha said it would not be Constitutionally permissible to recognise the right to civil union mirroring a marriage.
He added that a review of legislative schemes that exclude same-sex couples from pension, gratuity and insurance needs to be undertaken.
The petitioners had argued that the country’s marriage laws discriminate against the LGBTQIA+ community and infringe on their fundamental right to dignity and privacy. They had thus sought an amendment to the Special Marriage Act, 1954, for legal recognition of same-sex marriages.
The constitution bench had said that it would not go into personal laws of India’s religious communities that govern marriages and that the notion of a man and a woman, as referred to in the Special Marriage Act, is not “an absolute based on genitals”.
The court had also asked the Union government in April whether social welfare benefits such as insurance, nominating life partner in provident funds, gratuity and pension schemes could be extended to same-sex couples without going into the question of legal sanction for such marriages.
The Centre had opposed the petitions, arguing that same-sex marriages are not compatible with the Indian idea of a family and that the demands for their legal recognition represent “urban elitist views for the purpose of social acceptance”. It also contended that making laws around marriage is the prerogative of the legislature and the judiciary should not intervene.
Instead, the Centre had proposed to set up a committee to address the “human concerns” of same-sex couples without legally recognising their relationship as marriage.
The government had also told the court that seven state governments had responded on the matter. Three of them – Andhra Pradesh, Assam and Rajasthan – opposed legally endorsing same-sex marriages. The four other states said they would need more time to examine the issue.