Published On: Tue, Oct 17th, 2023

SC declines legal recognition to same-sex marriage, leaves it to Parliament

New Delhi: The Supreme Court today refused to grant legal recognition to same-sex marriages, saying it was up to Parliament to make laws to enable it. The top court, though, stressed that queer persons had the right to choose their partners and asked the Centre to ensure that couples were not discriminated against. The five-judge bench differed on adoption by same-sex couples; it ruled 3:2 against it in four separate judgements.

Called upon the State to create awareness that this is not a mental disorder

A five-judge constitution bench unanimously agreed that there is “no unqualified right” to marriage and same-sex couples can’t claim it as a fundamental right.

The Supreme Court also directed the government to constitute a committee to examine the rights and entitlements of persons in queer union, without legal recognition of their relationship as a “marriage”. During the argument, the centre had informed the court that it plans to form a committee headed by the Cabinet Secretary to address the issue.

While Chief Justice DY Chandrachud and Justice SK Kaul said that same-sex couples can adopt children, the other three judges – Justices Ravindra Bhat, Hima Kohli and PS Narasimha – disagreed.

The court pronounced four judgments by Chief Justice Chandrachud, Justice Kaul, Justice Bhat and Justice Narasimha.

The Chief Justice said that it is “incorrect to state that marriage is a static and unchanging institution”, adding that “reforms in marriage have been brought about by Acts of the legislature”. Choosing a life partner is an integral part of choosing one’s course of life, the Chief Justice said. “Some may regard this as the most important decision of their life. This right goes to the root of the right to life and liberty under Article 21,” he said.

Justice Chandrachud noted that the “right to enter into a union cannot be restricted on the basis of sexual orientation”. He also noted that “failure of State to recognise the bouquet of rights flowing from a queer relationship amounts to discrimination.”

The court, though, said that it cannot strike down the provisions of the Special Marriage Act (SMA), and the Chief Justice left the decision to the Parliament.

“The court cannot strike down the Special Marriage Act or read words into the law due to institutional limitations. The court cannot read words into allied laws like the Succession Act as it would amount to legislation,” the Chief Justice said.

“It is for the Parliament to decide whether a change in the regime of the Special Marriage Act is needed. This Court must be careful not to enter into the legislative domain,” he said.

Justice Kaul, who said that the Special Marriage Act is violative of Article 14, also noted that “there are interpretative limitations in including homosexual unions in it.” He added, “As rightly pointed by Solicitor General, tinkering with Special Marriage Act can have a cascading effect”.

On the freedom of the queer community to enter into unions, the Chief Justice, in his minority opinion, said that it is “guaranteed under the Constitution. Denial of their rights is a denial of fundamental rights. The right to enter into unions cannot be based on sexual orientation”.

Justice Kaul, who agreed with the Chief Justice, also stated that the legal recognition of civil unions for non-heterosexual couples would represent a step towards marriage equality.

Justice Bhat differed, stating, “Civil unions can only be recognised through laws”. He added that the court can’t press the state to create a legal framework for it.

“Recognition for civil union cannot exist in the absence of a legislation. Creation of an institution depends on the State action which is sought to be compelled through the agency of the Court,” Justice Bhat observed.

Queer people have the right to choose their own partner, but will not have any right to claim recognition of such unions, the court said.

The CJI observed that “queerness is not urban or elite”. He said, “Homosexuality or queerness is not an urban concept or restricted to the upper classes of society. It is not an English-speaking man with a white-collar man who can claim to be queer but equally a woman working in an agricultural job in a village.”

Justice Bhat also agreed that queerness is “neither urban nor elitist”.

The central government had stated during the argument that those seeking it merely represent “urban elitist views for the purpose of social acceptance”.

The Supreme Court directed the Centre, state, and Union Territory governments to ensure that queer persons are not discriminated against. The top court also called upon the State to create awareness that this is not a mental disorder. It also asked the government to establish ‘garima grihas’, safehouses for queer persons.

The court also stated that the police shall ensure that no queer person is harassed to ascertain gender identity, and they shall not be forced to go back to their natal families.

The five-judge bench decided on the matter after hearing 20 petitions filed by various same-sex couples, LGBTQ+ activists, and transgender persons, which challenged the provisions of the Special Marriage Act of 1954, the Hindu Marriage Act of 1955, and the Foreign Marriage Act of 1969, seeking recognition of non-heterosexual marriages.

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