Mumbai: A Constitution bench of the Supreme Court on Tuesday refused to give legal recognition to same-sex marriages. The SC bench, headed by Chief Justice of India (CJI) DY Chandrachud, pronounced the judgement on 21 pleas filed by same-sex couples, LGBTQ+ activists and organisations. The apex court had reserved its judgement on the matter on May 11.
Nonetheless, the court said that the ruling will not restrict queer people’s ability to form partnerships. The top court further declared that there was no evidence to support the Special Marriage Act’s (SMA) under-classification claim.
On these points, Justices Ravindra Bhat, Narasimha, and Hima Kohli concurred, however, Justices Chandrachud and Sanjay Kishan Kaul held opposing views.
The bench made it clear at the outset of the decision that there were four rulings in the case. CJI Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, and Justice Narasimha each contributed one.
The CJI ordered that the Union and State governments make sure that the LGBTQ community is not subjected to prejudice in his ruling.
The CJI stated that it should make sure the LGBT community is not subjected to prejudice when it comes to accessing products and services. The public has to be made more aware of LGBT rights. To stop harassment, the Union and state governments need to set up a hotline for the LGBT community. Safe residences for LGBT couples must be established by the government. The government must also make sure that youngsters who identify as intersex are not coerced into having surgeries.
According to the CJI, it must be made sure that no one is coerced into receiving hormone therapy. The gay community must not be harassed by being called to the police station just to have their sexual identification questioned. Queer people shouldn’t be forced by the police to rejoin their birth families. A preliminary investigation must to be carried out by the police prior to filing a formal complaint on the relationship of a homosexual couple.
According to the CJI, this Court is authorised to hear the matter. India has long been aware of the natural phenomena known as queer. It isn’t elitist or urban. A marriage is dynamic. Due to institutional constraints, the Supreme Court is unable to amend or repeal the Special Marriage Act. Failure of the State to recognise the bouquet of rights flowing from a queer relationship amounts to discrimination.
Sexual orientation cannot be a reason for limiting someone’s ability to form a relationship. In heterosexual partnerships, transgender people are legally allowed to marry under current laws, including personal laws.
In his ruling, the CJI addressed the adoption of children by LGBTQ couples and stated that both married and single couples are eligible to adopt a child together. The freedom of the LGBTQ people to form unions should not be discriminated against by the federal government, state governments, or union territories.
The CJI ordered the Union Government to set up a committee to determine the privileges and rights of members of gay unions. The Committee will think about allowing gay couples to apply for joint bank accounts, ration cards, rights to pensions and gratuities, and other benefits as a family. The Union Government is going to review the Committee report.
Justice Sanjay Kishan Kaul stated in his concurring opinion that although marriage is not the end, legalising same-sex partnerships is a step towards marital equality. Judge Kaul stated, “Let’s maintain autonomy as long as it doesn’t violate the rights of others.”
On several points of the ruling, Justices Ravindra Bhat and Narasimha differed from the CJI.
According to Justice Bhat, the freedom to marry is a basic right that cannot be unqualified. Although we acknowledge that a person has a right to a relationship, we also realise that this right is covered by Article 21. It involves the freedom to select a partner and have physical contact with them, as well as the right to privacy, autonomy, and other things. This freedom should be enjoyed outside of society, and the state must defend it when it is in danger. There’s no denying that choosing a life mate is a decision.
Judge Bhat stated that as there is no constitutional right to marry or legal recognition of partnerships between non-heterosexual couples, the Court cannot impose any obligations on the State. Justice Bhat stated that as there are many factors to take into account, the government should establish a legal framework for gay couples rather than the court. Everyone who identifies as queer has the freedom to select their partner, but the state is not required to acknowledge the range of rights that result from that choice.
Justice Bhat went on to say that a broad, impartial reading of the Special Marriage Act could not always be equitable and might unintentionally put women in vulnerable situations. Terms like “wife,” “husband,” and so on are meant to shield the weak, and the women who are victims of domestic abuse are there to make sure they get justice. Therefore, the Special Marriage Act would not be feasible if it were to be interpreted as intended.
On the right of gay couples to adopt, Justice Bhat expressed reservations and disagreed with the CJI.
Justice Bhat concluded by stating that there isn’t an absolute right to marriage. The only way to grant a civil union legal status is through legislation. However, these conclusions will not restrict queer people’s ability to form partnerships.
Justice Bhat stated in his ruling that there is no evidence to support a challenge to the Special Marriage Act based on underclassification. It is legal for transgender people in gay partnerships to be married. The state must make sure that LGBT people are not harassed.
Judge Ravindra Bhat’s point of view is one that Justice Hima Kohli expressed agreement with. Additionally, Justice Narasimha expressed agreement with Justice Ravindra Bhat’s viewpoint.
The hearing on the petition was started by the Constitution bench on April 18 and lasted for about ten days. The court made it clear that it would handle the matter in accordance with the Special Marriage Act’s requirements and would not address this part of personal laws.
The Centre has rejected the argument, arguing that the matter should be considered by parliament rather than the court. The court disagreed with the Center’s description of it as an urban elite idea.
The Centre had agreed to look into concerns related to granting LGBTQIA + some rights during the hearing, but they were against the same-sex couple receiving legal recognition.
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