On October 17, a Constitution Bench of the Supreme Court, led by Chief Justice D Y Chandrachud, unanimously ruled against the recognition of same-sex marriages. The Bench included Justices Sanjay Kishan Kaul, Ravindra Bhat, Hima Kohli, and P S Narasimha. In a split decision, 3-2, they also chose not to permit civil unions for non-heterosexual couples.
Highlights Of The Verdict
- All five judges on the Bench, including the CJI and Justice Kaul who advocated for civil unions, unanimously concurred that the Constitution does not confer a fundamental right to marry.
- The consensus among all five judges was unanimous: the Special Marriage Act (SMA) of 1954 cannot be amended through the use of gender-neutral language to permit same-sex marriage.
- The petitioners had approached the Supreme Court, seeking an interpretation of the term “marriage” to include “spouses” rather than being limited to “man and woman”. Alternatively, they requested the Court to invalidate provisions of the SMA that impose gender-based restrictions.
- CJI Chandrachud warned that invalidating the provisions of the SMA could undermine the legal structure that protects interfaith and inter-caste couples. He further argued that interpreting the SMA in a gender-neutral manner would constitute “judicial lawmaking,” violating the doctrine of separation of powers.
- Four of the five judges — CJI Chandrachud, Justice Kaul, Justice Bhat, and Justice Narasimha — wrote individual opinions. Justice Bhat, Justice Kohli (who concurred with Justice Bhat), and Justice Narasimha formed the majority, while the CJI and Justice Kaul wrote minority opinions in favour of extending civil union to same-sex couples.
- A ‘civil union’ is a legal status that grants same-sex couples certain rights and responsibilities typically associated with marriage. While resembling a marriage, a civil union does not carry the same recognition in personal law as marriage.
- The Chief Justice of India, in his opinion, along with Justice Kaul concurring, emphasised that the right to form unions is derived from the fundamental rights to freedom of speech and expression, as well as the right to life. The dissenting view also highlighted the importance of granting same-sex couples the same set of rights enjoyed by heterosexual couples in the form of civil union status.
- In the realm of the “bouquet of rights,” all five judges acknowledged the Centre’s stance to empower non-heterosexual couples through the establishment of a high-level Cabinet committee. This committee would explore the possibilities of granting various privileges to these couples, including the ability to open joint bank accounts, designate same-sex spouses as beneficiaries for provident funds, pensions, or inheritances, and enable them to make medical decisions for their partners. Such measures aim to ensure equality and fairness for all.
- In a dissenting opinion, CJI Chandrachud and Justice Kaul invalidated specific guidelines set by the Central Adoption Resource Authority (CARA), which prohibited joint adoption by same-sex or unmarried couples. The CJI argued that assuming only married, heterosexual couples can create a safe environment for raising children is discriminatory.
Plea For Marriage Equality
- Some petitions asked the top court for a wide interpretation of provisions to include same-sex marriage.
- The petitions stated that the court should change the Special Marriage Act (SMA) and other laws to recognize marriage regardless of gender and sexual identity.
- They want to remove the legal provisions that validate a marriage only between ‘men’ and ‘women’.
- The petitioners referred to the 2018 Navtej Johar case, which decriminalised sexuality and upheld sexual autonomy.
- They also cited the 2017 right to privacy case, which included sexual orientation as a privacy aspect.
- The argument is that the SMA can legally recognize same-sex marriages and give dignity to these unions.
- This recognition would also ensure the community’s access to social security and other benefits.
- Some petitions also questioned the SMA’s need for a 30-day public notice for intended marriages, calling it patriarchal and a violation of privacy and freedom of choice in marriage.
- The Union government argued that only a marriage between a biological man and a woman is valid due to legislative policy and compelling state interest.
- The government criticised the petitioners for promoting an “urban elitist concept”.