On October 17, 2023, the 5-Judge Constitution Bench of the Supreme Court pronounced its verdict in this batch of petitions, rejecting the plea for queer persons’ right to marry in India. The five-judge Bench unanimously agreed that there is no fundamental right to marry, and that marriages between queer persons cannot be read into the Special Marriage Act, 1954. In a 3:2 majority, the bench held that same-sex couples did not have the right to form civil unions, and that they could not adopt. All five judges agreed that transgender persons in heterosexual relationships have the right to marry under the existing legal framework.
On November 14, 2022, two same-sex couples filed writ petitions in the Supreme Court seeking legal recognition of same-sex marriages in India. The petitions challenged the constitutionality of the Special Marriage Act, 1954. The petitioners argued that Section 4(c) of the Act recognises marriage only between a ‘male’ and a ‘female’. This, according to them, discriminated against same-sex couples by denying them matrimonial benefits including adoption, surrogacy, employment and retirement benefits. The plea was tagged with a number of other petitions which on similar grounds, challenged other personal laws including the Hindu Marriage Act, 1955 and the Foreign Marriage Act, 1969.
The petitioners argued that the non-recognition of same-sex marriage violates the rights to equality, freedom of expression and dignity. They inter alia relied on NALSA vs Union of India (2014) and Navtej Singh Johar vs. Union of India (2018) which recognised non-binary gender identities and guaranteed equal rights to homosexual persons. On November 25, 2022, a Supreme Court Bench comprising Chief Justice D.Y. Chandrachud and Justice Hima Kohli passed an Order directing the Union to respond to the petitions. Similar petitions were pending before the Delhi and Kerala High Courts.
On January 3, 2023, Senior Advocate Menaka Guruswamy and Advocate Karuna Nundy urged a 2-Judge Bench comprising CJI Chandrachud and Justice P.S. Narasimha to transfer two similar petitions pending before the Delhi & Kerala High Courts to the Supreme Court. The Bench agreed to list the transfer petitions along with the main petition on January 6, 2023. On January 6, 2023, a 3-Judge Bench comprising Chief Justice D.Y. Chandrachud with Justices P.S. Narasimha and J.B. Pardiwala transferred 9 pending petitions dealing with similar issues from the Delhi and Kerala High Courts to itself. On March 13, 2023, a 3-Judge Bench led by CJI D.Y. Chandrachud referred the case to a 5-Judge Constitution Bench.
The Hearings & Judgement
The Constitution Bench began hearing the case on April 18, 2023, which went on for ten days witnessing intense arguments of all hues and colours, and the live streaming of the proceedings drew significant focus from people from all walks of life. The hearings concluded on May 11, 2023 and the Constitution Bench reserved Judgement in the case. After 5 months, on October 17, 2023, the 5-Judge Bench pronounced its verdict in this batch of petitions, rejecting the plea for queer persons’ right to marry in India.
The five-judge Bench unanimously agreed that there is no fundamental right to marry, and that marriages between queer persons cannot be read into the Special Marriage Act, 1954. All five judges agreed that transgender persons in heterosexual relationships have the right to marry under the existing legal framework. Four opinions were written in this case, by Chief Justice DY Chandrachud, Justices SK Kaul, SR Bhat (on behalf of Justice Hima Kohli) and PS Narasimha. In a 3:2 majority, the bench held that same-sex couples did not have the right to form civil unions, and that they could not adopt. Justice Bhat, Kohli and Narasimha were in the majority, whereas CJI Chandrachud and Justice Kaul were in minority.
Issues & Rulings
Is there a fundamental right to marry? [Unanimous decision: No]
CJI Chandrachud held that the Constitution does not expressly recognise a fundamental right to marry. He pointed out that the laws relating to the institution of marriage are enacted by the Parliament. State legislatures are permitted to make amendments to such laws.
Justice Bhat echoed a similar sentiment, emphasizing that the Constitution doesn’t specifically acknowledge a right to marry. He wrote that marriage exists “independently of the state” indicating that its source is not from law, but from society. The state can “utilise or accommodate” but cannot abolish marriage. In this case, the Court could not “require the state to create social or legal status”. He delineated marriage as a “personal preference” that bestows social status, rather than an “enforceable right” that the state or governing bodies can be mandated to provide. Justice Narasimha, while agreeing with Justice Bhat, added that marriage is a fundamental freedom, and not a fundamental right.
Do same sex couples have a right to enter into a “civil union”? [3 No : 2 Yes]
CJI Chandrachud, being in the minority, upheld the right of queer couples to engage in civil unions. He articulated that such a right, encompassing the freedom to choose one’s partner, is pivotal for individual self-development. “For the full enjoyment of such relationships, it is necessary that the State accord recognition to such relationships”, he stated. This right form “civil unions” are safeguarded under Article 19, which embodies the freedom of speech, expression, and association. Justice Kaul concurred with CJI and stated that the right to form a “civil union” is a feature of Article 19 and Article 21.
Leading the majority opinion on this question, Justice Bhat agreed with the CJI that under Article 21, “all queer persons have the right to relationship and choice of partner, cohabit and live together, as an integral part of choice.” However, he disagreed with the reasoning that a civil right to a union in the form of a new law must exist. “Ordering a social institution” would require a completely different legal framework with a “new universe of rights and obligations.” This would require a separate regime for registration of the civil union, laying down the conditions of a valid union, setting eligibility, age, restrictions, divorce, alimony and a bouquet of other rights that are ancillary to marriage. Agreeing with Justice Bhat, Justice Narasimha added that mandating the state to recognise a civil union, would violate the doctrine of separation of powers.
Can the Supreme Court make a declaration recognising same sex couples’ right to marry? [Unanimous: No]
The petitioners had argued that fundamental rights of non-heterosexual persons are being violated, so the SC can make a declaration recognising LGBTQIA+ marriages. This may be a placeholder till Parliament makes the necessary legislative changes. On the contrary, the Union had argued that legal recognition of such marriages requires the creation of a new law, which is exclusively a legislative action, and a declaration by the SC will breach the separation of powers doctrine.
CJI held that the state must recognise queer relationships. The freedom to choose a partner would be rendered “otiose” if the state does not recognise the “bouquet of entitlements.” Justice Bhat held that the Court may feel that that measure or norm is lacking, but it cannot venture into the legislative domain. Justice Narasimha agreed with Justice Bhat and held that the SC cannot make a declaration recognising same sex couples’ right to marry.
Is the Special Marriage Act, 1954 unconstitutional for excluding non-heterosexual couples? [4 No : 1 Yes]
Petitioners in this case had argued that the Special Marriage Act (SMA) violated the right to equality as it failed to recognise the non-heteronormative marriages, and thus discriminated between heterosexual and non-heterosexual persons.
CJI Chandrachud held that declaring the provision unconstitutional would diminish the purpose of the “progressive legislation” that the Act incorporates. He held that such a judicial verdict would take the nation back to the era clothed in social inequality and religious intolerance. In contrast to the Chief’s opinion, Justice Kaul held that the SMA was violative of Article 14 as it discriminates against queer persons. He stated that there is a clear distinction between non-heterosexual and heterosexual persons under the SMA. However, there is no reasonable explanation for drawing that distinction. The intent of the SMA to facilitate inter-faith marriages, he said, had no “nexus” with the exclusion of non-heterosexual couples, he stated.
Justice Bhat held that a classification is only considered to be violative of Article 14 when there is no “conceivable reasonable basis for the differentiation.” Unless the excluded category in any classification belongs to the included class, it does not amount to exclusion. Justice Bhat noted that the “sole intention” of the SMA was to “facilitate marriage between persons professing different faiths”. At the time that the law was made, consensual sexual relations between persons of the same sex remained prohibited. He stated that as long as an objective of a law is clearly discernible, it cannot be attacked merely because it does not make a better classification. Justice Narasimha agreed with Justice Bhat.
Can the right to marry be read into the provisions of the Special Marriage Act, 1954? [Unanimous decision: No]
The petitioners had argued that the Court must adopt purposive interpretation of the SMA, and that it should adopt a gender-neutral interpretation of the law to include non-heterosexual couples.
CJI Chandrachud held that thought purposive interpretation as a “workability model” would lead to replacing or deleting words in other provisions of the SMA, and several other legislations such as the Hindu Succession Act, and the Indian Succession Act. He stated that by doing so, this Court would in effect be redrafting the laws in the garb of reading words into the provisions, entering into the realm of the legislature and thus violating the doctrine of separation of powers. Justice Kaul held that there are “multifarious interpretive difficulties” when it comes to including non-heterosexual persons under the SMA. He accepted the Union’s arguments that tinkering with the scope of marriage under the SMA can have a cascading effect across these disparate laws. Citing “limited institutional capacity”, Justice Kaul stated that the Court has no adequate form of remedy.
Justice Bhat wrote that “objects of a statute, acquire primacy” in interpretation of statutes, and that “Parliament intended only one kind of couples, i.e., heterosexual couples belonging to different faiths, to be given the facility of a civil marriage” under the SMA. He warned that a gender-neutral interpretation of the SMA would “complicate an already exhausting path to justice for women and leave room for the perpetrator to victimise them.” For instance, separate legal age for marriage for men and women, remedies for divorce and maintenance would pose serious challenges under a gender-neutral construction. Justice Narasimha agreed with Justice Bhat’s opinion.
Can unmarried non-heterosexual couples adopt? [3 No : 2 Yes]
Petitioners had challenged the Regulation 5(3) of the Central Adoption Resource Authority Guidelines, 2020 which restricts adoption to single individuals and married couples who are in a stable marital relationship for two years. Further, Section 57(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 mandated that both spouses had to consent for adoption.
CJI Chandrachud observed that the provision does not expressly impede unmarried couples from adopting a child because it uses the word “spouse” and not “married couples”. An unmarried couple may also include queer relationships. He held that Regulation is inconsistent with the JJ Act, and violates Articles 14 and 15 of the Indian Constitution as it discriminates against unmarried couples.
Justice Bhat held that he was “unable to concur” with CJI and held that a complete reading of Section 57(2) makes it clear that it only concerns joint adoption by married couples. The law is designed this way keeping in mind the “best interest of the child” to protect it from instances where the marriage has broken down. As the JJ Act only enables adoption, marriage becomes a key prerequisite to attract protection from laws on divorce, custody, guardianship, maintenance, succession, among others. The “guiding principle” of the JJ Act is the best interest of the child, “not to enable adoption for all”, he held. The state needs to “ensure that the maximum welfare and benefits reach the largest number of children in need of safe and secure homes with a promise for their fullest development.” Justice Narasimha also agreed with Justice Bhat.
Can transgender persons in heterosexual relationships marry under existing laws? [Unanimous decision: Yes]
The petitioners had argued that the right to marry should extend to transgender persons. The Union government had argued that a marriage is only between a “biological man” and a “biological woman”. CJI Chandrachud held that a transgender person in a heterosexual relationship is entitled to marry after a “harmonious interpretation” of existing marriage laws and the Transgender Persons Act, 2019. He reasoned that marriage laws in India permit marriages arising out heterosexual relationships. Further, he stated that a person is a transgender person by “virtue of their gender identity”, and it is not their “sexual orientation”. The same was agreed to by Justice Bhat in his opinion.
All five judges agreed that transgender persons in heterosexual relationships have the right to marry under the existing legal framework
The Bench unanimously agreed that queer persons face violence and discrimination in the country. To obviate the violence and discrimination, CJI Chandrachud issued a slew of directions for the Union and the state governments. Lastly, the Bench entrusted a great deal of expectation on a “high-powered committee” chaired by the Cabinet Secretary to set out entitlements and rights for queer persons.
Marriage in India is a socio-religious sacramental union, not only between two individuals but between two families. Any interference to the said institution would have serious repercussions on the society at large, and therefore one must tread carefully on the path of interference to this time-tested institution, that gives birth to family – the basic building block of a society.
As rightly held in the majority verdict, the exercise of law-making is an exclusive domain of the legislature and not the judiciary, especially in matters exclusively within the social and political domain. In any case, marriage being an entry in the Concurrent List warrants consultation amongst the respective state legislatures which was otherwise being sought to be bypassed. The decision of the majority of the judges, while refusing recognition to same-sex unions, to pass on the baton to the Parliament – the vox populi, to decide upon the issues of legal recognition of homosexual couples, which is the appropriate forum to undertake wider and comprehensive consultation with all stakeholders on the issue.
By its judgement, the Supreme Court has re-affirmed the doctrine of separation of powers and at the same time stopped the onslaught by vested interest groups that from time to time seeking to weaken and destabilize the sui generis Bharatiya family system and society. It is expected that the Judiciary will continue to guide our nation with its profound wisdom and uphold the principles that are intrinsic to our identity and will play its significant role in preserving the core values that define our society.