In a closely-watched verdict, India's Supreme Court, by a 3:2 majority, ruled against granting legal recognition to same-sex marriages. The decision came after a marathon 10-day hearing by a five-judge constitution bench led by Chief Justice DY Chandrachud. During the proceedings, petitioners emphasized the LGBTQIA+ community's equality rights and their desire for a dignified life, just like heterosexual couples.
However, the Centre (defendant) opposed these pleas, stating that Indian laws recognize unions only between biological men and women. So, this landmark judgment signifies an important discussion on LGBTQ+ rights in India and marriage equality.
Let's delve into this article to know the highlights of the judgment and a brief timeline of the entire case.
Highlights of the Judgment
- The bench comprised Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli and Justice PS Narasimha with Justices S Ravindra Bhat, Hima Kohli, and P S Narasimha in the majority and Chief Justice of India D Y Chandrachud and Justice Sanjay Kishan Kaul in the minority.
- The Supreme Court, in this landmark case (Supriyo @ Supriya Chakraborty & Anr. vs Union of India 2022), has entrusted the matter of same-sex marriage to Parliament, as it is unable to alter provisions of the Special Marriage Act.
- Chief Justice Chandrachud and Justice Kaul advocated for civil unions for non-heterosexual couples, marking a step toward marriage equality. However, all five judges agreed that there's no inherent right to marry under the Indian Constitution.
- A majority verdict by a 5- member Bench therefore ruled against same-sex marriage, emphasizing that Parliament should make this call. It failed to recognise the validation of same-sex marriage in the country.
- The intense 10-day debate covered issues like equality, privacy, marriage benefits, and child welfare, with opposition from the Central government, national child rights body NCPCR, and Islamic scholars' group, Jamiat-Ulama-i-Hind.
- Also, talking about the queer community, while the bench stated that queerness as a concept is a natural phenomenon known for ages and is neither urban nor elite, it said the court couldn't make a law but only interpret it. The Justices also said that it is for Parliament to change the Special Marriage Act.
- However, the bench directed the Centre, states and Union Territories (UTs) to ensure the queer community is not discriminated against!
But what about a queer couple's adoption, right? Read until the end to dig into this part of the judgment.
Also, to know the meaning of 'Queer' in LGBTQ+, dig into this article
What was the same-sex marriage case?
In November 2022, two same-sex couples moved to the Supreme Court, arguing that their inability to marry under Indian family law resulted in a violation of their fundamental rights to equality, life and liberty, dignity, free speech and expression, etc. After a hearing that lasted 10 days, the court reserved its judgment in May 2023 and finally decided the same on Oct 17th, 2023.
- Earlier this year, in a landmark hearing, the Supreme Court bench, led by Chief Justice DY Chandrachud, debated same-sex marriage over ten days. This case primarily centred on the idea of "civil unions" and their legal recognition under the Special Marriage Act. The Centre urged Parliament to make decisions on same-sex marriage, invoking religious definitions of marriage.
- While 32 countries worldwide have embraced same-sex marriage, India's Supreme Court has left the verdict in Parliament's hands. To begin with, the timeline, first of all, Chief Justice Chandrachud's opinion in the Same-Sex Marriage case stressed the need to protect queer rights without striking down Special Marriage Act provisions. He called for non-discrimination, equitable access to goods and services, and public awareness of queer rights. His recommendations include creating a hotline, establishing safe houses, and prohibiting forced hormonal therapy and police harassment.
- Then, Justice Kaul supported civil unions for non-heterosexual couples, while Justice Bhat suggested leaving the decision to Parliament. This discussion reflected the evolving landscape of LGBTQ+ rights in India with varied perspectives on the path to equality (in compliance with the 2018 Navtej Singh Johar case).
The issue before the Court
Is there a right to marry under the Indian Constitution, and if there is, is the prevention of same-sex/ queer couples from being able to enjoy this right discriminatory?
The court ruled that marriage, as an institution governed by law, does not currently include same-sex couples, and the absence of such inclusion is not deemed unconstitutional. The Special Marriage Act of 1954, designed for inter-faith unions and central to the case, remains unaltered in its restriction to marriages between a 'man' and a 'woman.' Ultimately, the court held that there is no fundamental right to marry, although the minority observed that the right to marry interfaces with other fundamental rights, including the right to freedom of expression, freedom of movement, and a life of dignity and autonomy.
If not marriage, do queer couples have the right to enter into a ‘civil union’, a marriage-like setup?
The Supreme Court's ruling declared that, as of now, there's no inherent right for same-sex couples to marry or enter into a civil union in India. The majority opinion asserts that only an elected legislature can bring about such changes, as these unions would impact a wide range of laws and policies.
Can queer couples adopt children?
Regarding adoption, prior to 2022, same-sex couples could adopt by designating one partner as the legal parent, taking advantage of the Juvenile Justice Act 2015, which allowed single individuals to adopt. However, new regulations introduced in 2022 complicated this process, demanding a two-year stable marital relationship for eligibility. Despite striking down some of these rules, the court ultimately left the responsibility to reconsider adoption laws with the executive and encouraged it to reconsider the laws on adoption in line with the best interests and welfare of children. This ruling essentially upholds the status quo, offering little optimism for LGBTQ+ adoption rights in India.
Consequently, queer couples became ineligible to adopt. The judgment has refused to recognise queer marriages or civil unions. It does not open any doors, only a few windows that were already unlocked.
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