It's for Parliament to change law: Supreme Court refuses to allow same-sex marriage

Satya Prakash

New Delhi, October 17

Holding that there’s no fundamental right to marry, the Supreme Court on Tuesday refused to allow same-sex marriages in India even as it directed the Centre to set up a high-powered committee, headed by the Cabinet Secretary, to decide the rights and entitlements of persons in queer unions.

Queerness not solely urban concept

Advertisement

Limited exploration of literature… makes it abundantly clear homosexuality or queerness is not solely an urban concept nor is it restricted to the upper classes or privileged communities.

— CJI DY Chandrachud

Recognition of right to union via law

An entitlement to legal recognition of the right to union akin to marriage or civil union, or conferring legal status upon the parties to the relationship can be only through enacted law.

— Justice S Ravindra Bhat

A five-judge Constitution Bench led by CJI DY Chandrachud unanimously turned down petitions seeking to allow same-sex marriages under the Special Marriage Act, saying it’s for Parliament to effect changes in the law for validating such unions.

There were four judgments — one each pronounced by CJI Chandrachud, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat and Justice PS Narasimha. Justice Hima Kohli agreed with Justice Bhat. In their verdicts, the judges agreed on certain issues and differed on others.

Verdict on other key issues by Constitution Bench

3:2 decision against civil union

Majority rules against legal recognition for right to civil union, akin to marriage for same-sex couples

Hetero trans couples can marry

Transgender couples in heterosexual relationships have right to marry as per existing laws

Panel to decide rights to queers

Cabinet Secretary-led high-powered panel to decide rights, entitlements of those in queer unions

Queer couples can’t adopt child

Central Adoption Resource Authority norms barring unmarried, queer couples from adopting kids upheld

“The Constitution does not expressly recognise a fundamental right to marry,” wrote the CJI. Similarly, Justice Bhat ruled: “There is no unqualified right to marriage except that recognised by a statute, including space left by custom.”

While the CJI and Justice Kaul ruled in favour of civil union, Justice Bhat, Justice Kohli and Justice Narasimha opined against it.

Legal in 34 countries

34 countries, including Argentina (2010), UK (2014), Australia and Germany (both 2017), recognise marriage between same-sex couples

“An entitlement to legal recognition of the right to union, akin to marriage or civil union, or conferring legal status upon the parties to the relationship can be only through enacted law. A sequitur of this is that the court cannot enjoin or direct the creation of such regulatory framework resulting in legal status,” Justice Bhat wrote. The Bench, which reserved the verdict on May 11 on the contentious issue after hearing marathon arguments for 10 days during April-May, directed the government to set up a high-powered committee to decide the rights and entitlements of persons in queer unions.

LGBTQIA pledge to fight on

Despite setback, LGBTQIA community remains undeterred in its quest for equal rights. It regards verdict as a ‘partial victory’, acknowledging it as a small step forward as the SC called on authorities to take steps to safeguard its rights. Faraz, an LGBTQIA activist, vowed to continue the fight.

The Centre had submitted same sex marriage was not in conformity with societal morality and Indian ethos and would cause a “complete havoc” with the delicate balance of personal laws.

The Bench, however, ruled transgender persons in heterosexual relationships have a right to marry as per the existing statutory laws or personal laws.

Maintaining that gender of a person was not the same as their sexuality, CJI Chandrachud said: “Therefore, since a transgender person could be in a heterosexual relationship, a union between a transman and a transwoman or vice-versa could be registered under the Special Marriage Act and other existing laws.”

With regard to the right of transgender persons in heterosexual relationships to marry as per the existing statutory laws or personal laws, the verdict was unanimous as Justice Kaul, Justice S Ravindra Bhat and Justice PS Narasimha agreed with the CJI’s opinion.

By a majority of 3:2, the Constitution Bench also upheld one of the adoption regulations that prohibited unmarried and queer couples from adopting children.