SC refuses to legalise same-sex marriage; CJI says right to enter union includes right to choose partner, its recognition

Refusing to to strike down the Special Marriage Act and Foreign Marriage Act, CJI said that the court can't make law but only interpret it and that it was for the Parliament to change it.
For representational purpose.(Photo | Pexels)
For representational purpose.(Photo | Pexels)

A five-judge Supreme Court bench on Tuesday refused to grant legal recognition to same-sex marriages after it differed on certain aspects, especially on the applicability of adoption rules for queer couples. 

Refusing to strike down the Special Marriage Act (SMA) and Foreign Marriage Act for not recognizing queer marriages, the Chief Justice said that the court can't make law but only interpret it and that it was for the Parliament to change the Special Marriage Act.

The five-judge constitution bench headed by Chief Justice of India (CJI) D Y Chandrachud and comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and P S Narasimha, had had a 10-day-long hearing on 21 pleas seeking legal validation for same-sex marriages.

CJI Chandrachud stated: "The right to enter into a Union includes the right to choose one's partner and the right to recognition of that union," adding that failure to recognise it would be discriminatory. ""All persons, including those queer, have right to judge moral quality of their lives," he said.

"Failure of State to recognize the bouquet of rights flowing from a queer relationship amounts to discrimination," the CJI noted.

The CJI said that this court has recognised that equality demands that queer persons are not discriminated against. He went on to add that it would also be discriminatory if the law assumed that only heterosexual couples can be good parents. 

On the topic of adoption by queer couples, the CJI said that, "The Juvenile Justice (Care and Protection of Children) Act, 2015, does not preclude unmarried couples from adopting. The Union of India has not proved that precluding unmarried couples from adopting is in the best interest of the child. So, the Central Adoption Resource Authority has exceeded its authority in barring unmarried couples."

"There is no material on record to prove that only a married heterosexual couple can provide stability to a child," he said.

A 3:2 SC judgement

At the outset, Justice Chandrachud said there are four judgments -- by himself, Justices Sanjay Kishan Kaul, S Ravindra Bhat and P S Narasimha -- in the matter. Justice Hima Kohli is also a part of the five-judge bench.

While Justice S K Kaul agreed with the CJI on grant of certain rights to queer couples, Justice S Ravindra Bhat said that he both agreed and disagreed with the views of CJI Chandrachud on certain points.

Justice Sanjay Kishan Kaul said that legal recognition of non-heterosexual unions was a step towards marriage equality.

Justice PS Narasimha said it would not be constitutionally permissible to recognise a right to civil union mirroring a marriage. He said the constitutional challenge to the Special Marriage Act and Foreign Marriage Act must fail.

Justice Bhat, who read out the operative portion of his verdict, said he agrees and differs with views of the CJI on certain points.

CJI asserts queerness not an elitist concept; issues directions to end discrimination of queer people

Asserting that homosexuality or queerness was "not an urban concept or restricted to upper class of society", CJI Chandrachud said, "To imagine queer as existing only in urban spaces would be like erasing them, queerness can be regardless of one's caste or class."

CJI Chandrachud also said, "Withdrawal of the State from the domestic space leaves the vulnerable party unprotected. Thus all intimate activities within private space cannot be said to be beyond State's scrutiny."

The Chief Justice also directed the police to conduct a preliminary enquiry before registering FIR against queer couple over their relationship, adding that the Centre, States and Union Territories must ensure that the queer community was not discriminated against.

Other directions of the CJI to end discrimination against queer people include 1. No discrimination in access to goods and services, 2. A hotline for the queer community, 3. Safe houses for queer couple, 4. ensure inter-sex children are not forced to undergo operations, 5. No person shall be forced to undergo any hormonal therapy, 6. Police should not force queer persons to return to their natal family.

Meanwhile, Solicitor General (SG) Tushar Mehta said that the Centre would form a panel to decide the rights, and entitlements of persons in queer unions.

Here are highlights from the CJI's remarks:

  • On sex-change operation: States, Union Territories to ensure that inter-sex children are not allowed sex-change operation at an age when they cannot fully comprehend its consequences, the CJI said
  • On hetereosexual unions of trans people: CJI Chandrachud said that the marriage between a trans man and a trans woman can be registered under the Special Marriage Act as they are in a heterosexual relationship
  • On whether the SMA needs a change: The top judge remarked that only the Parliament can decide whethere there was a need for change in the regime of the Special Marriage Act. "If Special Marriage Act is struck down, it will take the country to pre-Indpendence era. If the Court takes the second approach and reads words into the SMA, it will be taking up the role of legislature."
  • The CJI added that the top court was not equipped to undertake such an exercise of reading meaning into the statute and that they must be careful to not enter into legislative domain
  • No harassment of queer people by cops: "There shall be no harassment to queer community by summoning them to police station solely to enquire about their sexual identity. Police should not force queer persons to return to their natal family," the CJI said.
  • On marriage being a static concept: The CJI said it would be incorrect to state that marriage is a "static and unchanging institution". He said the ability to choose a life partner goes to the roots of the right to life and liberty under Article 21 of the Constitution.

While hearing the matter on May 11, the top court bench had observed it cannot give a declaration on same-sex unions on the anticipation as to how Parliament is likely to respond to it.

Following is the chronology of events leading up to the Supreme Court's verdict on Tuesday in which it refused to grant legal recognition to same-sex marriages:

  • Sep 6, 2018: Constitution bench unanimously decriminalises part of Section 377 of the IPC which criminalises consensual unnatural sex, saying it violated the right to equality
  • Nov 25, 2022: Two gay couples move SC seeking recognition of same-sex marriage under Special Marriage Act; SC issues notice to Centre
  • Jan 6, 2023: SC directs transfer of all petitions seeking legal recognition for same-sex marriages pending before different high courts to the apex court. There were 21 petitions on the issue.
  • Mar 12: Centre opposes recognition of same-sex marriage in SC
  • Mar 13: SC refers case to Constitution bench
  • Apr 15: SC notifies composition of five-judge bench
  • Apr 18: SC commences hearing arguments
  • May 11: SC reserves verdict
  • Oct 17: SC refuses to grant legal recognition to same-sex marriages

(With PTI inputs)

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