The Supreme Court delivered its verdict on the legal recognition of same-sex marriage on October 17. The court had previously reserved its judgment on May 11 after considering a set of pleas seeking validation for same-sex unions.
The Constitution bench, consisting of Chief Justice DY Chandrachud along with Justices SK Kaul, SR Bhat, Hima Kohli, and PS Narasimha, presided over the hearings. The petitioners argued that in India, a culture centered around marriage, LGBT couples should be entitled to the same rights as heterosexual couples.
These rights include recognition as “spouses” in financial and insurance matters, as well as decisions pertaining to medical, inheritance, succession, adoption, and surrogacy.
“This court cannot make law; it can only interpret it and give effect to it. The court, in the exercise of the power of judicial review, must remain clear of matters, particularly those impinging on the policy which falls in the legislative domain,” the verdict said.
Key Points:
The Constitution bench, led by Chief Justice of India Dhananjaya Y. Chandrachud and including justices Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli, and P.S. Narasimha, unanimously affirmed that the right to marry is not a fundamental right. They also emphasized that it falls outside the jurisdiction of courts to instruct the legislature to establish a new legal framework for recognizing same-sex marriages and queer relationships.
Chief Justice Dhananjaya Y. Chandrachud emphasized that homosexuality and queerness are not confined to urban or upper-class society, asserting that these identities transcend caste, class, and socio-economic status. He highlighted the right of LGBTQIA+ individuals to choose their partners and engage in intimate relationships, underlining the importance of the state recognizing a range of their rights.
The Chief Justice stated that marriage is not a fixed institution, and cautioned against striking down the Special Marriage Act, as it could revert the country to a pre-Independence era. He emphasized that any changes to this act should be decided by Parliament, not the Court. Additionally, he affirmed that transgender persons can register their marriages under the Special Marriage Act, and all LGBTQIA+ couples can marry if they identify as man and woman.
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Chief Justice Chandrachud stressed that the ability to choose a life partner is fundamental to the right to life and liberty under Article 21. He criticized the Central Adoption Resources Authority’s circular prohibiting LGBTQIA+ couples from adopting, deeming it discriminatory and unconstitutional. He argued that the right to enter a union encompasses the choice of partner and its recognition, and failure to acknowledge such associations is discriminatory.
The Chief Justice acknowledged the state’s legitimate interest in regulating marriage as a social institution and cautioned against the Court directing legislative action. He also supported the proposal for an expert panel, led by the Cabinet Secretary, to consider granting queer couples various rights and privileges, excluding the right to marriage. This would align their rights more closely with those available to heterosexual couples.
The bench emphasized that under the Transgender Persons Act 2019, transgender individuals in heterosexual relationships possess the right to marry in accordance with existing laws, including those governing personal laws related to marriage, as stated by Justice Bhat. Chief Justice Dhananjaya Y. Chandrachud added that the state should facilitate the LGBTQ community in exercising their constitutional rights. He stressed that queer individuals are entitled to freedom from coercion from their families of birth, state authorities like the police, and other individuals.