No recognition for LGBTQIA+ marriages, SC passes the buck to Parliament

A five-judge Constitution Bench of the Supreme Court, on Tuesday, October 17, refused to recognise marriage equality of LGBTQIA+ persons, observing that it was up to Parliament to make a law. The judgement comes following a marathon hearing spread over 10 days in April this year by a bench headed by Chief Justice of India DY Chandrachud and comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha.

The bench delivered four separate judgements by CJI Chandrachud, Justices Sanjay Kaul, Ravindra Bhat and Narasimha. Justice Kohli concurred with Justice Bhat.

All five judges were of the opinion that marriage is not a fundamental right and that only Parliament or the legislature can decide on legal recognition for marriage equality.

The majority opinions were delivered by Justices Ravindra Bhatt, Hima Kohli, and PS Narasimha who were in agreement that there can be no legal recognition of a civil union without a law enacted by Parliament or state legislatures. The three judges, however, said queer persons have the right to cohabitation

CJI Chandrachud and Justice Sanjay Kaul, who delivered the minority opinion, held that queer couples have the right to enter into a civil union but not the right to marry under existing law. The CJI observed that the the court could not strike down provisions under the Special Marriage Act or read into it and other laws as it falls under the domain of Parliament or the legislature.

The CJI also recognised that all trans persons in heterosexual relationships have the right to marry under the existing laws. This comes as a big victory for the transgender community because until now this recognition was based on a Madras High Court judgement.

The bench agreed that queer relationships must not be discriminated against and gave directions to the state and the police to protect LGBTQIA+ couples, but the decision to legislate upon their marriage has been left to the Parliament’s discretion. The bench also specifically addressed ‘conversion therapy’, stating that no queer individual can be forced to receive any kind of medical treatment against their will.

The judges also disagreed on the right of queer couples to adopt. While CJI Chandrachud held that unmarried couples including queer couples have the right to adopt a child, Justices Bhat, Kohli and Narasimha disagreed.

The top court reiterated that the Solicitor General had promised to set up a committee headed by a Cabinet secretary to look into the issues faced by LGBTQIA+ persons, and it shall have as its members, domain experts, community members, and others. The CJI directed the committee to see if queer families can have ration cards, can have insurance facilities and the medical practitioners have the obligation to consult the family for terminal illness, and rights from employment, gratuity, etc. to be looked into. However, no specific time frame has been mentioned to do the same.

The bench heard arguments from the petitioners and the counsels representing the Union government, and intervenors, including the Delhi Commission for Protection of Child Rights (DCPCR) and the National Commission for Protection of Child Rights (NCPCR).

On January 5 this year, the Supreme Court had clubbed and transferred to itself all petitions pending before different High Courts across the country demanding marriage equality to individuals of the LGBTQIA+ community. The batch of 20 petitions includes those challenging certain Sections of the Hindu Marriage Act (HMA), the Special Marriage Act (SMA), the Foreign Marriage Act (FMA), and other marriage laws, citing them as unconstitutional on the ground that they deny LGBTQIA+ persons the right to marry. The petitions ask for the said Sections to be read broadly so as to grant persons of all genders and sexual orientations the right to marry.

In response to this, the Union government had filed a counter affidavit in March 2023 before the Supreme Court, opposing the pleas and stating that they were “wholly unsustainable, untenable, and misplaced.” The affidavit also stated that the definition of marriage, which is "socially, culturally, and legally ingrained into the very idea and concept of marriage, should not be disturbed or diluted by judicial interpretation." The government further mentioned that the matter must be legislated upon by the Parliament and not decided by the court.

After a brief hearing on March 13, the Supreme Court transferred the petitions to a Constitution bench saying that the petitioners have sought the right of marriage not only by relying upon legal precedents but also by asserting broader constitutional entitlements pertaining to the right to life and dignity embodied in the Constitution and its Preamble.

What were the grounds challenged?

The petitions challenged the existing Acts related to marriage registration by stating that they violate Articles 14 (Equality before law), 15 (Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth), 19 (Protection of rights regarding freedom of speech, assembly, etc), 21 (Protection of life and personal liberty), and 25 (Freedom of conscience and free profession, practice, and propagation of religion) of the Constitution of India. They also contended that excluding same-sex couples from the ambit of marriage is arbitrary and unreasonable. The counsels of the petitioners sought a gender-neutral reading of the Special Marriage Act and said that doing so would not impact the operation of the statute.

Read: Explained: Special Marriage Act provisions challenged by the marriage equality petitions

Why did the Union government oppose this?

The Union government, in its affidavit, contended that legal validation of same-sex marriage will cause "complete havoc" to the delicate balance of personal laws and accepted societal values in the country. It also stated that the legislative policy recognises marriage as a bond only between a biological man and a biological woman, stressing that same-sex marriage is not in conformity with societal morality or Indian ethos.

Solicitor General (SG) Tushar Mehta, who appeared on March 13 for the Union government, argued that both the right to love and the right to express it were already upheld in the Navtej Singh Johar and Others vs Union of India judgement that decriminalised Section 377 of the Indian Penal Code (IPC), legalising consensual same-sex relationships. Elaborating on the reason behind the judgement not recognising same-sex marriages, he said, “The moment marriage as a recognised institution comes between the same sex, the question will come on adoption.” He argued that the Parliament will have to look into other related issues like adoption and “examine the psychology of the child” before allowing marriage equality.

Read: Trans women have always married in India — it’s the law that needs to catch up