Same-sex marriage verdict | India fails to recognise gay marriage

Divided Supreme Court bench fails to recognise marriage equality rights for LGBTQIA+ community in India

Right to marriage is a statutory right, concurs Justice PS Narasimha

"We disagree with the CJI on the right of queer couples to adopt and we voice certain concerns," says Justice S. Ravindra Bhat.

This is not to say that unmarried or non-heterosexual couples can't be good parents.. ..given the objective of section 57, the State as parens patriae has to explore all areas and to ensure all benefits reach the children at large in need of stable homes."

"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." says Justice Bhat.

"Purpose of terms like wife, husband, man and woman, in marriage is to provide a socially marginalised demography of individuals," says Justice S. Ravindra Bhat.

Justice Ravindra Bhat says he does not agree with the CJI's directions on the Special Marriage Act.

"We do not particularly subscribe to the views of CJI on democratising intimate spaces...these outcomes were brought by legislative acts."

"Marriage is a social institution. The marital status is not conferred by the state. The idea of marriage is not a fundamental right," he added.

"Queerness is neither urban nor elitist....However, we do not agree with the directions issued by the Chief Justice of India," says Justice S. Ravindra Bhat.

Need for a separate anti-discrimination law, says Justice Sanjay Kishan Kaul.

"I wholeheartedly agree with the Chief Justice of India that there is a need for an anti-discrimination law."

"Non-heterosexual unions are entitled to protection under the Constitution," he added.

"Union Government will constitute a committee to decide the rights and entitlements of persons in queer unions. This Committee to consider to include queer couples as 'family' in ration cards, enabling queer couples to nominate for joint bank accounts, rights flowing from pension, gratuity, etc. The Committee report to be looked at Union Government level," instructs CJI Chandrachud.

"Same-sex relationships have been recognised from antiquity, not just for sexual activities but as relationships for emotional fulfilment," says Justice Kaul.

"Right to enter into a 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. Unmarried couples, including queer couples, can jointly adopt a child," says CJI.

"Failure of State to recognise the bouquet of rights flowing from a queer relationship amounts to discrimination."

"In Article 15 the word sex must be read to include sexual orientation"

-This Court has the power to hear the case.

- Queer is a natural phenomenon known to India from ages. It is neither urban nor elitist. 

CJI has directed Centre and State governments to ensure that there is no discrimination in access to goods and services to the queer community and said the government must sensitise the public about queer rights.

Government to create a hotline for the queer community, create safe houses 'Garima Grih' for queer couples who face violence and ensure intersex children are not forced to undergo operations.

CJI Chandrachud reveals he has a disagreement with the judgement of Justice Ravindra Bhat.

CARA circular violates Article 15 of the constitution, says CJI Chandrachud.

In India, "adoption regulations barres unmarried partners from being prospective, adoptive parents. These regulations only permit persons to adopt in an individual capacity and not jointedly as an unmarried couple," he explained previously. 

"Law cannot make assumption on good or bad parenting based on sexuality of individuals," says Supreme Court.

"Article 21 is available to all persons, including queers." 

"Article 21 encompasses rights...dignity, autonomy and privacy. Each of these facets animates the others, it is not possible to speak of the right to enter into a union without also speaking of the right to intimacy."

"Each individual is entitled to decide this for themselves in accordance with the conscience with their conscience"

"Does the right to enter into a union include the right to associate with the partner of one's choice? According recognition to their association and ensuring that there is no denial of access to basic goods or services, which is crucial to achieve the goal of self-development."

"Humans are unique in many respects"

"The ability to feel emotions such as brief happiness, anger, and affection and then the need to share them makes us who we are."

"To imagine a queer person as existing only in urban or elite settings is like erasing their identity," said Chandrachud quoting a person who was assigned female gender at birth.

CJI Chandrachud talks on Doctrine of Separation says the court can pass a judgement on the issue and that a verdict will not encroach on the legislative.

India is currently undergoing a historical debate on same-sex marriage, with a landmark trial marked with a range of comments and statements from various individuals and groups, some outlandish, others groundbreaking. 

As the Indian apex court readies to deliver its judgement, have a look at some notable statements from the same-sex marriage trial.

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Even though India has accepted people of the LGBTQ+ community, and they have been allowed to live together, they still cannot marry each other, as there is no legal provision that gives them the right to do so.

Furthermore, LGBTQ+ couples cannot adopt a child or have a kid through surrogacy.

As per the Indian surrogacy laws, which were amended in 2016, single parents, homosexuals, live-in couples, and foreign single individuals are prohibited from having children through surrogate mothers. 

The same rule kicks in when trying to adopt children in India.

Apart from that, same-sex couples are not entitled to rights to inheritance, maintenance and tax benefits. After a partner passes away, they cannot avail benefits like pension or compensation.

The nation's courts have time and again cited Article 21 of the Indian Constitution, which states "no person shall be deprived of his life or personal liberty except according to procedure established by law." while ruling in favour of contentious issues like inter-faith and inter-caste marriages, and ordered the police and other rights organisations to provide protection whenever necessary.

In 2018, when the court decriminalised homosexuality, it noted, "Members of the LGBTQ+ community are entitled to the benefit of an equal citizenship, without discrimination, and to the equal protection of the law."

"The choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation."

However, it is hard to predict what the final verdict on same-sex marriages will be.

Calling the petitions seeking the right to same-sex marriage an “urban elitist concept far removed from social ethos of the country”, the submission filed by the government stated that recognition of marriage is a legislative function and that the courts should refrain from deciding.

“A decision by the court in recognising the right of same-sex marriage would mean a virtual judicial rewriting of an entire branch of law. The court must refrain from passing such omnibus orders. Proper authority for the same is appropriate legislature...Given the fundamental social origin of these laws, any change in order to be legitimate would have to come from the bottom up and through legislation...a change cannot be compelled by judicial fiat and the best judge of the pace of change is the legislature itself.”

The Narendra Modi-led Bharatiya Janata Party (BJP) government has opposed the batch of pleas seeking legal validation of same-sex marriage, saying it would cause complete havoc with the delicate balance of personal laws and accepted societal values. 

In an affidavit filed before the apex court, the government submitted that 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. 

On November 25 last year, two same-sex couples approached the top court seeking recognition of same-sex marriage under the Special Marriage Act, following which the court issued notices on the plea. 

They wanted the court to make provisions so that the Special Marriage Act be made gender-neutral by striking out gender-or sexuality-based discrimination. 

The apex court noted that a similar case was taken by the Kerala High Court, in which the Union Government made a statement through the Deputy Solicitor General that the ministry was taking steps to get all the writ petitions, including the writ petition before the High Court of Delhi, transferred to the SC. 

Following this, a two-judge bench led by Chief Justice DY Chandrachud issued a notice and sought a response from the central government, and the Attorney General for India. 

Later on January 6, 2023, the apex court ordered the transfer of all petitions seeking legal recognition for same-sex marriages pending before different high courts. 

The judgement comes in response to a batch of 15 pleas seeking legal validation of same-sex marriages. Even though the Indian Supreme Court decriminalised homosexuality in 2018, same-sex marriages remain illegal and unrecognised by Indian laws.  

A five-judge constitutional bench comprising Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli and Justice PS Narasimha heard the arguments, and will soon pass their judgement on pleas seeking recognition of same-sex marriage under the Special Marriage Act, Foreign Marriage Act and the Hindu Marriage Act.