Supreme Court declines to legalise same-sex marriage

Satya Prakash

New Delhi, October 17

The Supreme Court on Tuesday refused to allow same-sex marriages in India even as it directed the government to set up a high-powered committee headed by the Cabinet Secretary to decide the rights and entitlements of persons in queer unions.

A five-judge Constitution Bench headed by the Chief Justice of India DY Chandrachud – which reserved the verdict on May 11 on the contentious issue after hearing marathon arguments for 10 days during April-May – refused to grant legal recognition to same-sex marriages.

There were four verdicts – one each by CJI Chandrachud, Justice Sanjay Kishan Kual, Justice S Ravindra Bhat and Justice PS Narasimha.

Justice Narasimha agreed with Justice Bhat’s view that “marriage as an institution precedes the state. This implies that marriage structure exists regardless of the state. Terms of marriage are independent of the state, and its sources are external.”

Justice Kohli – who didn’t write her own verdict – also agreed with Justice Bhat.

In their separate, but concurring minority judgments, the CJI and Justice Kaul, however, said same-sex couples were entitled to recognition of their relationships as a civil union and can claim consequential benefits.  Holding that such couples have the right to adopt children, they struck down adoption regulations to the extent it prevented them from adopting a child.

But all the five judges unanimously said there was no unqualified right to marriage and that same-sex couples cannot claim it as a fundamental right.

CJI Chandrachud declared that failure of the state to recognise the bouquet of rights flowing from a queer relationship amounted 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…To imagine queer as existing only in urban spaces would be like erasing them, queerness can be regardless of one’s caste or class,” the CJI said.

Justice Chandrachud, however, said, “It’s for Parliament to change the Special Marriage Act and the court can’t make law but only interpret it.”

Agreeing with the CJI, Justice Kaul said the state must ensure that queer couples faced no discrimination in accessing basic needs and societal tolerance. Giving the right of marriage to queer couples by court was not possible as it’s a legislative exercise, Justice Kaul said.

Noting that same-sex relationships have been recognised since antiquity — not just for sexual activities, but as relationships for emotional fulfilment, Justice Kaul referred to ancient texts and certain Sufi traditions.

Justice Bhat – with whom Justice Narasimha and Justice Kohli agreed – said that the Supreme Court has recognised that marriage is a social institution, which preceded the state.

A gender-neutral interpretation of the Special Marriage Act may not be equitable at times and can result in women being exposed to vulnerabilities in an unintended manner, Justice Bhat said, adding, “If Section 4 of SMA is to be read in a gender-neutral manner, the interplay of other provisions will lead to anomalous results, rendering the Special Marriage Act unworkable.

The Centre, some of the states, and certain Hindu, Muslim and Christian organisations had opposed the petitions.

The Centre submitted that 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.

Despite the decriminalisation of Section 377 of the Indian Penal Code, the petitioners cannot claim a fundamental right for same-sex marriage to be recognised under the laws of the country, it had said in an affidavit.

However, the affidavit stated that though the Centre limits its recognition to heterosexual relationships, there may be other forms of marriages or unions or personal understandings of relationships between individuals in a society and these “are not unlawful”.

Any constitutional declaration made by the Supreme Court on pleas seeking legal validation for same-sex marriage may not be a “correct course of action” as the court will not be able to foresee, envisage, comprehend and deal with its fallout, the Centre had submitted.

The governments of Assam, Andhra Pradesh and Rajasthan had opposed petitions seeking legal recognition for same-sex marriage, citing public opinion and adverse implications for the social and family system.

The Bench had already made it clear that it would not get into the personal laws of various religious communities and would only examine the Special Marriage Act, 1954, to consider the petitioners’ prayer.