‘No legal Recognition for Same-Sex Marriages’, Rules Supreme Court

A five-judge Supreme Court Constitution bench on Tuesday passed a majority verdict stating that there is no unqualified right to marriage for LGBTQIA+ couples. It emphasized that legal recognition of civil union can only be achieved through enacted law.

A  bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, delivered this verdict that had been reserved since May 11 of this year.

The court, however, said that the judgment would not impede the right of Queer individuals to engage in relationships. It also stated that the challenge to the Special Marriage Act (SMA) on the basis of under-classification was not valid.

Justice Ravindra Bhat, Justice Narasimha, and Justice Hima Kohli were in agreement with these positions, while CJI Chandrachud and Justice Sanjay Kishan Kaul expressed differing opinions.

At the start of the judgment, the bench clarified that there were four judgments in the case: one by CJI Chandrachud, another by Justice Sanjay Kishan Kaul, a third by Justice Ravindra Bhat, and the last by Justice Narasimha.

In his judgment, CJI Chandrachud directed the Union and State governments to ensure there is no discrimination against the Queer community. He stressed the need to sensitize the public about Queer rights and called for the establishment of a hotline for the Queer community to prevent harassment. He also urged the government to create safe houses for Queer couples and ensure that intersex children are not compelled to undergo operations.

CJI Chandrachud emphasized that no person should be forced to undergo hormonal therapy and that there should be no harassment of the Queer community by summoning them to police stations solely to inquire about their sexual identity. He noted that police should not force Queer individuals to return to their natal families and should conduct a preliminary inquiry before registering an FIR against a Queer couple regarding their relationship.

The CJI further stated that the Supreme Court has the authority to hear the case, emphasizing that being Queer is a natural phenomenon known in India for ages and is neither urban nor elitist. He pointed out that marriage is not static and that the Supreme Court cannot strike down the Special Marriage Act (SMA) or insert words into the Act due to institutional limitations. The failure of the State to recognize the rights stemming from a Queer relationship amounts to discrimination. He asserted that the right to enter into a union cannot be restricted based on sexual orientation, and transgender individuals in heterosexual relationships have the right to marry under existing laws, including personal laws.

Regarding the adoption of children by Queer couples, CJI stated that unmarried couples, including Queer couples, can jointly adopt a child. He directed the Union Government to constitute a committee to determine the rights and entitlements of individuals in Queer unions. This committee should consider including Queer couples as a family on ration cards, enabling them to nominate joint bank accounts, and securing rights related to pension, gratuity, and more. The report of the committee should be reviewed at the Union Government level.

In his concurring judgment, Justice Sanjay Kishan Kaul noted that legal recognition of same-sex unions is a step toward marriage equality but emphasized that marriage is not the end. He suggested preserving autonomy as long as it doesn’t infringe on the rights of others.

However, Justice Ravindra Bhat and Justice Narasimha disagreed with the CJI on various aspects of the judgment.

Justice Bhat said that there is no unqualified right to marriage, but there is a right to relationship protected within Article 21, encompassing the right to choose a partner, enjoy physical intimacy, and have privacy and autonomy. He contended that the Court cannot obligate the State to recognize the bouquet of rights stemming from a non-heterosexual union; this, he suggested, is the legislature’s responsibility.

Justice Bhat also raised concerns about interpreting the Special Marriage Act, noting that it could lead to unintended vulnerabilities for women if treated in a gender-neutral manner. He emphasized that the purpose of terms like “wife” and “husband” in the Act is to protect the vulnerable and ensure justice for women facing domestic violence.

In his conclusion, Justice Bhat stressed that no unqualified right to marriage exists, and legal status for civil unions can only be granted through enacted law. Nevertheless, these findings should not prevent Queer individuals from entering into relationships.

Justice Hima Kohli concurred with Justice Ravindra Bhat’s viewpoint, and Justice Narasimha also concurred with Justice Bhat’s position.

The five-judge Constitution bench addressed a series of petitions concerning marriage equality rights for the LGBTQIA+ community. The order was reserved on May 11, following the conclusion of arguments by counsel from all sides.

The Constitution bench began its hearing on April 18, which continued for nearly 10 days. The court clarified that it would consider the issue under the provisions of the Special Marriage Act, leaving personal laws unaltered.

The Centre opposed the plea, contending that the issue should be considered by parliament, not the court. Despite the Centre’s characterization of the concept as urban and elite, the court did not agree.

During the hearing, the Centre agreed to explore certain rights for the LGBTQIA+ community but opposed legal recognition of same-sex couples.