In a long-awaited decision, the Supreme Court unanimously ruled against legalizing same-sex marriage. The apex court’s judgment declares that the right to marriage is not considered a fundamental one. It underscores its inability to alter the provisions of the Special Marriage Act or reinterpret its language, all while emphasizing that homosexuality extends beyond urban or elite contexts.
The primary focus of the petitions revolved around a gender-neutral interpretation of the Special Marriage Act, a secular law designed to facilitate inter-caste and inter-faith marriages. Over a ten-day period, a five-judge bench led by Chief Justice of India D Y Chandrachud heard these pleas, with the court proceedings made accessible to the public through live-streaming, promoting transparency and public interest. Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and P S Narasimha accompanied Chief Justice Chandrachud on the bench.
In his judgment, Chief Justice Chandrachud directed the government to take measures to ensure that the queer community does not face discrimination. These measures include eliminating discrimination in accessing goods and services, raising public awareness about queer rights, establishing a hotline for the queer community, creating safe houses for queer couples, prohibiting unnecessary operations on intersex children, and preventing any forced hormonal therapy. Additionally, guidelines were issued to law enforcement to avoid harassment of queer individuals or compelling them to return to their natal families.
The petitioners argued that LGBTQIA+ individuals deserved the legal privileges associated with marriage as part of their constitutional rights. However, the Centre and religious leaders opposed this assertion on various grounds. This case marks a significant milestone for LGBTQIA+ rights in India, following the historic 2018 Supreme Court judgment that decriminalized homosexuality.
The hearings for these pleas, filed by 21 petitioners, extended over ten days in April-May 2023, with the verdict being reserved on May 11. Given the intricate interplay of marriage and religion, the bench refrained from delving into personal laws governing marriages. The court emphasized that the concept of marriage, as defined in the Special Marriage Act, is not rigidly based on gender.
While some petitioners urged the apex court to use its authority and moral influence to encourage societal recognition of same-sex unions, ensuring that LGBTQIA+ individuals can lead dignified lives like their heterosexual counterparts, the respondents, including the Central government, the National Commission for Protection of Child Rights (NCPCR), and a group of Islamic scholars known as the Jamiat-Ulama-i-Hind, firmly opposed the petitions.
WHAT THE JUDGES SAID?
D Y Chandrachud delivered a judgment that challenges the perception of marriage as a static institution. He emphasized that labelling marriage as a fixed and unchanging concept is inaccurate. “It would be incorrect to state that marriage is a static and unchanging institution,” noted the Chief Justice.
Furthermore, Chief Justice Chandrachud highlighted that “queerness is neither urban nor elite.” He emphasized that “to imagine queer as existing only in urban spaces would be like erasing them, queerness can be regardless of one’s caste or class.”
In a clear delineation of the court’s role, Chief Justice Chandrachud stressed, “The court can’t make law. It can only interpret it and give effect to it.” He also cautioned that if section 4 of the Special Marriage Act were to be struck down, “benefits of a progressive legislation would be lost.” He underlined that such an action would take the country back to a pre-Independence era, as it would effectively enter into the realm of legislative matters. “Supreme Court cannot strike down provisions of SMA, Parliament needs to decide on the issue,” he added.
Furthermore, Chief Justice Chandrachud advocated for the right to choose one’s partner and have that choice acknowledged. He declared, “The right to enter into a union includes the right to select one’s partner, and the failure to acknowledge such unions is deemed discriminatory.”
Emphasizing the principles of equality and non-discrimination, he added, “All persons, including those queer, have the right to judge the moral quality of their lives. This court has recognized that equality demands that queer persons are not discriminated against.”
Chief Justice Chandrachud also addressed the presumption that only heterosexual couples can be good parents. He stated, “The law cannot assume that only heterosexual couples can be good parents, as it would amount to discrimination against queer couples.”
Justice S K Kaul echoed the Chief Justice’s sentiments, supporting the grant of certain rights to queer couples. He asserted, “Legal recognition of non-heterosexual unions is a step towards marriage equality. Non-heterosexual unions are entitled to protection under the Constitution. Non-heterosexual and heterosexual unions must be seen as both sides of the same coin.”
Justice Ravindra Bhat, while acknowledging certain aspects of the Chief Justice’s reasoning, expressed dissent regarding the directives related to the Special Marriage Act. He aligned with the conclusions outlined in Justice Narasimha’s judgment. Justice Bhat left it to the Parliament to decide and noted, “We do not particularly subscribe to the views of CJI on democratising intimate spaces…these outcomes were brought by legislative acts.”
Additionally, Justice Bhat disagreed with the Chief Justice on the right of queer couples to adopt. He asserted, “Queer persons have the right to choose partners, and the State cannot be obligated to recognize rights flowing from such unions.”