Yesterday a five-judge Constitution bench of the Supreme Court (SC) headed by Chief Justice of India (CJI) DY Chandrachud gave its verdict on the issue of SAME SEX MARRIAGE.
The SC’s refusal to accord legal recognition to marriage between persons of the same sex is a huge legal setback to the queer community in the country. Given the progress in law in recent years and the deepening of the meaning of individual rights, there was widespread expectation that the five-judge Constitution Bench would give the Special Marriage Act (SMA), a law that allows any two people to marry, a gender-neutral interpretation to include people belonging to the same sex.
All five judges have chosen to leave it to the legislature to enact such a law. CJI DY Chandrachud and Justice Sanjay Kishan Kaul have ruled that queer couples have a right to seek recognition for their union but declined to read down the provisions of the SMA to that effect. On the other hand, Justices S Ravindra Bhat, Hima Kohli, and PS Narasimha reject the position, holding that any such recognition can only be based on statute. In effect, the Court has accepted the government’s view that any move to legalise same-sex marriages will fall in the legislature’s domain.
Tuesday’s ruling followed a petition arguing that the failure to recognise same-sex unions violated LGBTQ people’s constitutional rights. While the court stopped short of allowing equal marriage, it recognised the rights of gay couples. The ruling means that Indians will now be free to engage in same-sex relationships, assured of constitutional protection. But marrying someone of the same sex remains forbidden.
CJI DY Chandrachud, who headed the five-judge bench that passed the judgment, said the right to choose a partner was the most important life decision. “This right goes to the root of the right to life and liberty under Article 21 [of India’s constitution],” he said.
“There cannot be any doubt that there is a choice to have a life partner,” said Justice Ravindra Bhat. “It includes the right to choose a partner and enjoy physical intimacy with them, including the right to privacy, autonomy, etc, and should enjoy this right undisturbed from society and when threatened State has to protect the same.”
The other judges on the bench were Justices Sanjay Kishan Kaul, PS Narasimha, and Hima Kohli.
The ruling crushed the hopes of tens of millions of LGBTQ+ (Lesbian, Gay, Bi sexual, Transperson, and Queer plus similar persons) people in India. Campaigners were bitterly disappointed that the court stopped short of defying the government and granting same-sex couples their dream of full marriage rights.
In concluding that there is no fundamental right to marry, the SC has negated the expectation that it would not allow discrimination against same-sex couples in the marital domain to continue. Marriage is indeed a social institution, with its own legal requirements and conditions for what constitutes a valid marriage. The right to seek social and legal validation through marriage is a matter of individual choice protected by the Constitution, but the SC still views it as being subject to statutory limitations. The majority disfavours the position that queer couples have a right to adopt children but agrees with the minority that there is no bar on transpersons entering into heterosexual marriages. There is no disagreement among the judges about the right of such same-sex couples to cohabit and be free from coercion and threats. Given that large sections of India may be opposed to the legalisation of same-sex marriages on religious and cultural grounds, the possibility of Parliament taking the initiative to do so is quite bleak. The LGBTQ+ community may now have to take heart from the Court’s direction that the government should form a committee to decide the rights and entitlements of queer couples. The community, however, still has quite a struggle ahead before the law catches up with its yearning for equality
The ruling means that LGBTQ+ people can now engage in relationships without fear of legal repercussions. However, denied marriage rights, they have no legal status in terms of family matters, like succession, inheritance, or even hospital visitation rights.
Waiting for your views on this blog.
Anil Malik
Mumbai, India
18th October 2023