The Supreme Court on Tuesday delivered its verdict on the legal recognition of same-sex marriage. The marathon hearing on the case took place in April for 10 days and the five-judge constitutional bench had reserved the judgment on May 11.
The Constitution bench in the Supreme Court was headed by Chief Justice of India Dhananjaya Y Chandrachud and also comprises justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha who gave a split verdict today.
The judges, in a 3-2 majority verdict, refused to grant legal recognition to same-sex marriages or approve civil unions.
What Were the Demands of the Petitioners?
One of the issues raised before the Court relates to the rights of transgender couples to marry, as a natural incident of their constitutional entitlements. The petitioners have sought a gender-neutral interpretation of provisions of the Special Marriage Act (SMA) that regulates inter-caste and inter-faith marriages.
In the batch of petitions under Article 32 of the Constitution, the petitioners sought recognition of the right of couples of the same gender to marry.
The bench had at the onset cleared that it would confine the case to the Special Marriage Act (SMA) 1954 and would not deal with the Hindu Marriage Act or personal laws.
One of the issues raised before the Court relates to the rights of transgender couples to marry, as a natural incident of their constitutional entitlements.
Key Takeaways from the SC Judgement
- Chief Justice of India Dhananjaya Y Chandrachud in his verdict left it to the Parliament and state legislatures to decide whether they want to recognise same-sex marriages or not.
- The Chief Justice held that it cannot declare the Special Marriage Act void or read it down. It added that the court can’t make law but only interpret it and it is for Parliament to change the Special Marriage Act.
- The SC judgment also asked the state to protect the rights of queer couples and ordered police and law enforcement agencies not to harass queer couples.
- The Supreme Court judgment on same-sex marriages raised hope for allowing adoption by queer couples, however, it was dashed later when three of the five judges on the bench disagreed with the Chief Justice and Justice SK Kaul on the issue. Chief Justice DY Chandrachud and Justice Kaul hold that queer couples have the right to adopt. However, Justices S Ravindra Bhat, Hima Kohli and PS Narasimha disagreed and upheld the CARA regulations which exclude queer and unmarried couples.
- The CJI also ruled that it is discriminatory to assume that only married, heterosexual couples can provide a safe space for raising children.
- It was unanimously held by the court that there is no unqualified right to marriage and same-sex couples cannot claim that as a fundamental right.
- All five judges took note of the government’s stand that a high-level Cabinet committee will look into rights that can be conferred to non-heterosexual couples ranging from opening joint bank accounts, same-sex spouses being beneficiaries for provident fund, pension, inheritance to be able to take medical decisions for the other spouse.
- Three out of five judges including Justice Bhat, Justice Kohli and Justice Narasimha formed the majority in ruling against extending civil union to same-sex couples. A ‘civil union’ is a legally recognized arrangement that allows same-sex couples specific rights and responsibilities that are normally given to married couples.
- The Chief Justice said that to be queer is not an urban or an elite practice. “People may be queer regardless of whether they are from villages or cities… Not only an English-speaking man can lay claim to being queer," he ruled.
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