Same-Sex Couples Have To Wait For Marriage Rights, SC Says Govt Should Make Policy

The Supreme Court has delivered its much-anticipated judgment on petitions seeking legal recognition for same-sex marriage. The Court has delivered a 3:2 split verdict and no legal recognition has been granted to same-sex marriages.

The court recognised that the freedom of queer to enter into a union is guaranteed under the Constitution, but it is the legislature's domain to make policy on same-sex marriage. CJI Chandrachud directed the central government to constitute a committee to decide the rights and entitlements of persons in queer unions.

This comes after the Supreme Court (SC) had heard a batch of pleas seeking legal validation for same-sex marriage in a ten-day marathon hearing but had reserved its judgement on May 11.

What did the SC say in its verdict on same-sex marriage?

There were four judgements on the case by CJI DY Chandrachud, Justice Kaul, Justice Bhat and Justice Narasimha.

These are the main points that the Supreme Court mentioned in its judgement on same-sex marriage:

1. This Court cannot make law. It can only interpret it.
2. "Homosexuality or queerness is not an urban concept or restricted to the upper classes of the society," said Chandrachud.
3. "It is incorrect to state that marriage is a static and unchanging institution," said Chandrachud.
4. He adds that if Special Marriage Act (SMA) is struck down, it will take the country to pre-Independence era. But on the other hand, if the Court takes the second approach and reads words into the SMA, it will be taking up the role of legislature.
5. The need to form part of family is core part of the human trait and is important for self-development... A failure to recognise such associations will result in discrimination against queer couples.
6. For the full enjoyment of such relationships, such unions need recognition. The state can indirectly infringe upon freedom if it does not recognise the same. Equality demands that persons are not discriminated against on the basis of their sexual orientation.
7. CJI states that the Right to intimate association is linked to several articles in the Constitution.
8. The CJI also spoke on adoption. It stated that the adoption regulation - the CARA regulation - is violative of Article 15 of the Constitution.

The conclusion of the Supreme Court verdict on same-sex marriage is:

- Queer is a natural phenomenon known to India from ages. It is neither urban or elitist.

- Marriage is not static.

- The court recognised that queer persons cannot be discriminated upon. Freedom of queer to enter into union is guaranteed under the Constitution, and denial of rights to them is a violation of fundamental rights.

- Material benefits and services flowing to heterosexual couples and denied to queer couples will be a violation of their fundamental right. Further, queer couples have the right to jointly adopt a child, and the CARA regulation was recognised as unconstitutional.

- However, SC cannot strike down the Special Marriage Act because of institutional limitations and since courts must steer clear of policy matters, which is the domain of the legislature.

- CJI Chandrachud directed the govt to constitute a committee to decide the rights and entitlements of persons in queer unions.

Which laws had the Supreme Court looked at?

Before the verdict, the Supreme Court had made it clear that it was only looking at the legal aspects of the Special Marriage Act and the Foreign Marriage Act and not recognising non-heterosexual marriages.

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The court is not touching on personal laws, such as the Hindu Marriages Act, and was confining itself only to the Special Marriage Act.

How do the government and petitioners view same-sex marriage?

The Union government believes that marriage is an exclusively heterosexual institution and that those seeking marriage equality were urban elites. In an affidavit, the Central government had stated that living together as partners and same-sex relationships are not comparable to the Indian family unit concept, which involves a biological man and a biological woman.

The Bar Council of India had requested the Supreme Court to leave the issue to the parliament.

Through Solicitor General of India Tushar Mehta, the Centre argued that the biological gender defined a person's gender.

To this, CJI Chandrachud had said, "There is no absolute concept of a man or an absolute concept of a woman at all. It's not the question of what your genitals are. It's far more complex; that's the point. So even when the Special Marriage Act says man and woman, the very notion of a man and a woman is not absolute based on genitals."

CJI DY Chandrachud

On the other hand, the petitioners had said that "India is a marriage-based culture". They insisted that LGBT (lesbian, gay, bisexual, and transgender) couples should be granted the same rights as any heterosexual couples have, like the status of "spouse" in finance and insurance issues, medical, inheritance, and succession decisions, and in adoption and surrogacy matters.

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