It’s been five years since Article 377 was struck down thus, decriminalising same-sex relationships between consenting adults. One battle down, the queer community has been fighting for marriage rights ever since. Five years after this historic judgement was passed, the Supreme Court (SC) delivered its much-awaited judgment on pleas seeking legal validation for same-sex marriage today, October 17, 2023. In what comes as a heavy blow to the LGBTQIA+ community, the SC ruled that there cannot be legal recognition for same-sex marriages, doing so by a 3-2 majority.
On May 11, a five-judge constitution bench headed by Chief Justice of India (CJI) D Y Chandrachud reserved its verdict after around 18 same-sex couples moved petitions, seeking recognition of their relationship with the legal and social status of “marriage.” Additionally, petitioners had sought a declaration by the Supreme Court that “marriage” would include same-sex couples under the Special Marriage Act. After hearing the pleas from both sides for 10 days, the judges passed four judgments – one each by CJI DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat, and Justice P V Narasimha. Today, as a part of the five-judge bench, these judges were joined by Justice Hima Kohli.
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The Basis Of Refusal
One point to note is that the five-judge bench’s refusal to legalise same-sex marriages is not based on an in-principle opposition to marriage equality but on legal technicalities and concerns of judicial legislation. There was a degree of agreement and a degree of disagreement. The CJI listed some directives and left it to the Parliament to decide on the issue. The judgment said, “The SC cannot strike down the provisions of the Special Marriage Act (SMA) or read words differently.“
CJI Chandrachud further added that it would be incorrect to state that marriage is a static and unchanging institution since we’ve seen many reforms that have been brought about by Acts of the legislature. When examining the Special Marriage Act (SMA), the bench came to the conclusion that the Court must be careful to not enter into legislative domain. It is for the Parliament to decide whether a change in the regime of the SMA is needed.
For The Queer
While upholding the rights of the queer community they also mentioned, “Queerness can be regardless of one’s caste or class or socio-economic status.” Homosexuality or queerness is not an urban concept or restricted to the upper classes of society. Citing a powerful example they said, “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.” A failure to recognize these unions would result in discrimination against queer couples, but the state can indirectly limit freedom.
Queer Rights
When talking about adoption rights the CJI backed the queer community saying, “There is no material on record to prove that only a married heterosexual couple can provide stability to a child.” This confirms that the adoption regulations violate the constitution for discrimination against queer couples. Choosing a life partner is an integral part of choosing one’s course of life. This right goes to the root of the right to life and liberty under Article 21 where the meaning of “liberty” is the ability to be who one wishes to be.
Citing the Centre’s pledge to form a panel on the issue, the CJI said, “We record the statement of the Solicitor General that the Union Government will constitute a committee to decide the rights and entitlements of persons in queer unions.” The committee shall consider including queer couples as family in ration cards, enabling queer couples to nominate for a joint bank account, rights flowing from pension, gratuity, etc.
Justice Kaul also joined CJI in batting for civil unions for non-heterosexual couples, saying this legal recognition represents a step towards marriage equality. The judgement further ensures that there shall be no harassment to the queer community by summoning them to the police station solely to enquire about their sexual identity or force them to return to their natal family. No person shall be forced to undergo any hormonal therapy.
Opposing Views
Justice Ravindra Bhat agreed that queer individuals have a right to a relationship, but it falls within Article 21 (Protection of life and personal liberty). He added that like all Indian citizens, they are entitled to their right to choose a partner and intimacy. While reading out the judgment, Justice Bhat presented a contrasting view saying, “All queer persons have the right to choose their partners. But State cannot be obligated to recognize the bouquet of rights flowing from such a Union. We disagree with the CJI on this aspect.” He further said that the court cannot craft a legal framework for queer couples, and the Legislature should do it, as there are several aspects to be taken into consideration.
In the final judgment, Supreme Court refused the same-sex marriage plea and recorded the statement of the Union that it will constitute a Committee to examine the rights and benefits which can be given to queer couples.
