Same-Sex Marriage Verdict: Supreme Court refuses to recognise it, rules by 3-2 majority

On October 17, a constitutional bench of the Supreme Court of India presided over by Chief Justice DY Chandrachud, announced its decision on Same-Sex Marriage Debate. The five-judge bench, including Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, passed a verdict with a 3:2 vote, emphasising that legislating the matter falls within the domain of the Parliament and dismissed the plea.

Justice Ravindra Bhat, Justice Narasimha and Justice Hima Kohli were in agreement on these positions, while CJI Chandrachud and Justice Sanjay Kishan Kaul took divergent positions.

The bench held that current law does not acknowledge the right to marry or have civil unions for same-sex couples, entrusting the matter to the Parliament. It also recorded the Union’s commitment to forming a Committee to assess rights and benefits for queer couples.

The bench announced that there would be four separate verdicts on the issue.

What are the four judgements?

1. The Chief Justice of India (CJI) stated that amending the Special Marriage Act for same-sex couples isn’t within the court’s authority. He emphasised that marriage norms evolve, and affirmed queer individuals’ right to form unions. The CJI warned that the state’s non-recognition of these unions disadvantages queer couples. He emphasised the legislature’s role in deciding on same-sex marriage legality and urged against discrimination.
2. Justice Kaul advocated for non-heterosexual relationships, referring to them as “civil unions,” stressing they should be free from discrimination. He supported the CJI’s proposal for a committee, led by the Cabinet Secretary, to address entitlements for same-sex couples. Justice Kaul affirmed that same-sex unions merit protection under the Constitution. However, he disagreed with the petitioners on the alleged discrimination in the Special Marriage Act, asserting it provides a secular framework. While endorsing the right to civil unions for same-sex couples, Justice Kaul called for a regulatory framework to formalise such unions. He emphasised the need for all constitutional authorities to work towards this goal, urging statutes to align with the recognition of civil unions for same-sex couples.
3. Justice Ravindra Bhat believes it’s Parliament’s duty to address marriage equality for LGBTQ couples. While not explicitly endorsing the CJI’s stance, he acknowledged that legislative acts have historically shaped outcomes in intimate spaces. Solicitor General Tushar Mehta had earlier highlighted that implementing marriage equality could impact 160 existing laws. He emphasised that only Parliament has the authority to enact such changes. Justice Bhat drew an analogy, likening the situation to a citizen not being able to demand roads for travel without an established legislative framework. Similarly, he suggested that the Court cannot establish a comprehensive set of rights for same-sex marriage and LGBTQ individuals without proper legislative support.
4. Justice Narasimha clarified that the Constitution doesn’t allow for recognising a civil union as equivalent to marriage. He called for a review of policies that exclude same-sex partners from benefits like pension, provident fund, gratuity, and insurance. He agreed with Justice Bhat’s judgment and emphasised that the LGBTQIA community’s rights cover gender identity, sexual orientation, and the freedom to cohabit. Justice Narasimha stressed the need for legislative action in defining marriage and also pointed out the continued validity of CARA regulations.

Judicial interpretation and special marriage act

Chief Justice Chandrachud emphasised that the court’s role is to interpret, not create, law. He highlighted the need for Parliament to consider amending the Special Marriage Act, underlining that the court’s jurisdiction lies in interpretation.

The verdict asserted that the right to choose a life partner is intrinsic to the fundamental rights of life and liberty as per Article 21 of the Constitution. The Chief Justice underscored that failure to recognise such associations would constitute discrimination.

The Chief Justice asserted that the court has recognised the imperative to prevent discrimination against queer individuals. He stressed that the law cannot assume that only heterosexual couples can be good parents, as this would lead to discrimination against queer couples.

The CJI said it should be ensured that there is no discrimination in access to goods and services to the queer community. There is a need to sensitise the public about queer rights. The Union and State Governments must create a hotline for the queer community to prevent harassment. The government must create safe houses for queer couples. The government also must ensure that inter-sex children are not forced to undergo operations.

The CJI said that it should be ensured that no person shall be forced to undergo any hormonal therapy. There shall be no harassment to the queer community by summoning them to the police station solely to enquire about their sexual identity. Police should not force queer persons to return to their natal family. Police should conduct a preliminary enquiry before registering an FIR against a queer couple over their relationship.

The CJI said this Court has the power to hear the case. Queer is a natural phenomenon known to India from ages. It is neither urban or elitist. Marriage is not static. Supreme Court cannot strike down Special Marriage Act or read words into the Act due to the institutional limitations. Failure of the State to recognise the bouquet of rights flowing from a queer relationship amounts to discrimination.

Right to enter into union cannot be restricted on the basis of sexual orientation. Transgender persons in heterosexual relationships have the right to marry under the existing laws including personal laws.

On adoption of children by queer couples, the CJI in his judgement said, unmarried couples, including queer couples, can jointly adopt a child. The Union Government, State Government and Union Territories shall not discriminate against the right of the queer community to enter into union.

Committee formation and stakeholder consultation

Chief Justice Chandrachud directed the formation of a Committee, led by domain experts, to engage in extensive consultations with the queer community. The Committee’s mandate includes examining rights related to ration cards, insurance facilities, medical consultations, and employment benefits.

The Union Government’s argument regarding personal laws and the definition of marriage was addressed. The apex court clarified its focus on the Special Marriage Act and challenged the notion that marriage is exclusively a heterosexual institution.

The Chief Justice highlighted that Solicitor General Mehta had assured the formation of a Committee with domain experts, tasked with wide stakeholder consultations within the queer community to determine entitlements such as ration cards, insurance facilities, medical consultations for terminal illnesses, and employment rights. The committee’s findings are to be considered at the Union government level.

Chief Justice Chandrachud contested the concept of gender as solely determined by biology, asserting that it is a more complex phenomenon. This challenges the traditional understanding of gender within legal frameworks.

Union Government’s argument 

The Union Government had contested the legitimacy of over 21 petitions seeking legal recognition of same-sex marriage, asserting that courts lack the authority to establish or acknowledge marriages through judicial interpretation or legislative amendments. The Supreme Court clarified that it would not intervene in personal laws like the Hindu Marriages Act, focusing solely on the Special Marriage Act.

The Union Government argued that marriage is exclusively a heterosexual institution and criticised those advocating for marriage equality as urban elites. The Supreme Court strongly objected to this argument, questioning the absence of supporting data. CJI Chandrachud challenged the Union Government’s assertion that a person’s gender is defined by their biological sex, emphasising the complexity of gender identity beyond physical characteristics.

A brief timeline

On November 25, 2022, two couples of the same sex approached the Supreme Court, urging the recognition of their unions under the Special Marriage Act. They advocated for the Act to be made impartial to gender. In response, the Supreme Court issued notices to the Union Government and the Attorney General of India.

On December 14, 2022, the Supreme Court also issued notices for another plea filed by a same-sex couple. This married couple, comprising an Indian and a US citizen, sought legal recognition of their marriage under the Foreign Marriage Act.

The Supreme Court consolidated all related cases from various high courts and set a hearing date for March 13, 2023, instructing the government to respond by February 15. Furthermore, the court-appointed a nodal counsel to assist both sides in the legal process.

In March 2023, the Union Government filed an affidavit opposing same-sex marriage, contending that the traditional concept of an Indian family involves a union between a biological man and woman, deeply rooted in religious and societal norms.

On March 13, 2023, the Supreme Court referred the case to a constitutional bench, emphasising the connection between statutory regulations and constitutional rights. The petitioners claimed broader constitutional entitlements based on the right to life, personal liberty, and dignity under Articles 14, 19, and 21.

In April 2023, religious and child rights organisations presented their perspectives. The Jamiat Ulama-I-Hind opposed the recognition of same-sex marriages, citing Islam’s prohibition of homosexuality, while the Delhi Commission for Protection of Child Rights supported same-sex marriages and the right of same-sex couples to adoption.

A five-judge Constitution bench began hearing the batch of pleas seeking legal recognition of same-sex marriages in India in April 2023. The Supreme Court subsequently requested the Union Government to provide a response regarding social benefits for same-sex couples, even without legal recognition of their marital status.

The hearings resumed on May 9, with Rajasthan opposing same-sex marriage, and six states requested more time to examine the matter. On May 11, the Constitution bench led by Chief Justice DY Chandrachud reserved its verdict.

The key issues before the court included the definition of marriage and the debate over including same-sex marriages under the Special Marriage Act. The petitioners argued that the Act already provided a route for recognising marriages outside personal law definitions, but the government and the court noted that the Act also incorporated elements from various religious personal laws.

Additionally, the court explored how recognising same-sex marriages in India would affect various laws and provisions, such as the minimum marriage age, succession, guardianship, and adoption. The Union Government highlighted that more than 160 provisions across different legislations would need to be modified to accommodate the recognition of same-sex marriages.

When debates around same-sex marriage started?

The ban on homosexuality in India was only struck down by the Supreme Court in 2018. However, resistance to extending marriage rights to same-sex couples persisted within the legislative sphere.

Last year, this issue reached the Supreme Court’s docket as 18 same-sex couples filed petitions seeking the recognition of their marriages under the Special Marriage Act, the Foreign Marriage Act, and the Hindu Marriage Act.

On October 17, 2023, the Supreme Court delivered its verdict on a set of petitions that advocate for the legal recognition of same-sex marriages. The case had been reserved for judgment on May 11.