On Tuesday, October 17, the Supreme Court delivered its verdict on a clutch of petitions demanding the legalisation of same-sex marriage. The apex court bench of Chief Justice DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, have refused to recognise same-sex marriage as legal in India.
In a 3-2 verdict, the apex court opinioned that there was no constitutional or fundamental right to civil unions. It left it for the Parliament and State legislature to decide whether same-sex marriage should be given legal status and to formulate legislation on it.
Final Outcome in #SameSexMariage Case :
— Live Law (@LiveLawIndia) October 17, 2023
#SupremeCourt refuses to recognise same-sex marriage, says it is for the legislature to do.
#SupremeCourt records the statement of the Union that it will constitute a Committee to examine the rights and benefits which can be given to… pic.twitter.com/aOMq3ymN9p
The apex court also refused to strike down Special Marriage Act and Foreign Marriage Act for not recognizing queer marriages. It recorded the statement of the Union that it will constitute a Committee to examine the rights and benefits which can be given to queer couples.
Chief Justice Dhananjaya Yeshwant Chandrachud said that it was outside the court’s remit to decide the issue and that parliament should write the laws governing marriage. “The court, in the exercise of the power of judicial review, must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain.”
While delivering the verdict the CJI had opinioned that the court cannot make law, it can only interpret it. “It’s the Parliament’s decision if it wants to bring about a change in the Special Marriage Act. The court has not gone into any other laws except the Special Marriage Act,” he said, adding that the SC can’t hold the Special Marriage Act unconstitutional just because it doesn’t recognize same-sex marriages. Also, it cannot compel Parliament or state assemblies to create a new institution of marriage.
The CJI added if the Special Marriage Act is struck down, it will take the country to the pre-Indpendence era. Weaving words into the SMA would amount to entering the realm of the legislature. The court is not equipped to do that, he said.
The CJI while delivering his verdict directed the Union, state governments and UTs to ensure there is no discrimination against the queer community. He said that the government should sensitise the public about queer rights, create a hotline for the queer community and create safe houses or garima grihas for them. Further, he said that the government should ensure inter-sex children are not forced to undergo sex change operations.
He added that the police should not harass the queer persons by summoning them to police stations, to enquire about their identity. They will also not force queer persons to return to their natal families if they do not wish to. A preliminary enquiry must be conducted before registering an FIR against a queer couple over their relationship.
Supreme Court Bar Association president Adish Aggarwala welcomed the top court’s judgment which ruled against legally recognising same-sex marriage in India.
#WATCH | "I welcome the decision of the Supreme Court where they have not allowed same-sex marriage," says Supreme Court Bar Association president Adish Aggarwala. pic.twitter.com/7yHPeImcvz
— ANI (@ANI) October 17, 2023
On May 11, after a marathon 10-day hearing, a five-judge constitution bench presided over by Chief Justice DY Chandrachud reserved its decision on the appeals. The other members of the bench are Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha.
The court had made it abundantly clear that the proceedings would only concern the legal recognition of same-sex marriages within the fold of the Special Marriage Act (SMA) and would not touch the personal laws on this aspect.
The petitioners, during the course of the hearing, had argued that, “India is a marriage-based culture” and that LGBTQIA+ couples should be granted the same rights as any heterosexual couples have, like the status of “spouse” in finance and insurance issues; medial, inheritance, and succession decisions, and even in adoption and surrogacy matters.
One of the petitioners of LGBTQIA+ marriage, Akkai Padmashali had said before the apex court,”…The resistance from the heterosexual people, not all, but almost everyone was objecting to marriages of LGBTQI…today the whole country is set to hear the judgement…people’s eyes are on the Supreme Court. I identify myself as a woman and if I want to marry a man with his consent then what is the business of society in this?..people have the right to make their own choices when it comes to marriage…I hope the judgement won’t be disappointing”.
Centre’s stand on the demand for legalisation of same-sex marriage
It may be recalled that the central government has opposed the petitions.
Centre, in its affidavit, had opposed the plea seeking legal recognition of same-sex marriage, saying that living together as partners by same-sex individuals, which is decriminalised now, is not comparable with the Indian family unit and they are clearly distinct classes that cannot be treated identically.
The Centre filed the affidavit countering the demand made by various petitioners seeking legal recognition of same-sex marriage. In the affidavit, Centre has opposed the plea and said that pleas seeking legal recognition of same-sex ought to be dismissed as there exists no merit in these petitions.
Centre on April 18 issued a letter to States, asking them to give their opinion on the issues relating to Same-sex marriage.
States of Assam, Andhra Pradesh and Rajasthan have opposed the legal recognition of same-sex marriages in the country whereas Maharashtra, Uttar Pradesh, Manipur and Sikkim sought more time to give their opinion on the same-sex marriage issue
