3 judges oppose, 2 in favour: Ball in Parliament’s court after SC verdict on same-sex marriages

The Supreme Court today did not rule in favour of same-sex marriages in India. It has now left the matter to the legislature’s domain.

The apex court in April began its hearing on a batch of petitions seeking the right to marry for LGBTQIA+ couples in India. The bench, comprising CJI DY Chandrachud and Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha, reserved its verdict on May 11.

The petitioners had urged the court not to leave the matter to the legislature. Those opposing the petitioners included the centre, NCPCR, and the Jamiat-Ulama-i-Hind.

Today, the court said there were four judgements in the matter – one each by CJI Chandrachud and Justices Kaul, Bhat and Narasimha. CJI Chandrachud said there was a “degree of agreement and there is degree of disagreement in the judgements”.

CJI Chandrachud went first, saying it’s incorrect to call marriage a “static and unchanging institution”. But he also emphasised that courts “must be careful not to enter the legislative domain”. He said it was for “Parliament to decide” whether there needs to be a change in the Special Marriage Act.

The CJI said he disagreed with Justice Bhat, who “acknowledges the discrimination against the queer couples but does not issue directions”.

Among other directions, CJI Chandrachud said the central, state and UT governments must ensure the queer community is not discriminated against, ensure no discrimination in access to goods and services, sensitise the public, establish hotline numbers, set up safe houses for the community, and ensure intersex children are not forced to undergo operations.

He subsequently said these governments must not discriminate against the “right of the queer community to enter into union”.

Justice Kaul said he agreed with the CJI’s judgement. He said “these unions are to be recognised as a union to give partnership and love”, and this is a moment to “remedy historical injustice and discrimination”. Justice Kaul described heterosexual and non-heterosexual marriages as “two sides of the same coin”.

Therefore, he said the “legal recognition of non-heterosexual unions is a step towards marriage equality” even though “marriage is not the end”.

Justice Bhat said there is “no fundamental right to marry” under the Constitution and that the Special Marriage Act is “not unconstitutional”. He said there cannot be an “unqualified right to marry which is to be treated as a fundamental right”.

He said it falls to the legislature to create a legal framework for queer couples. Justice Bhat added that gendered terms like “husband” and “wife” are important to protect women from being “exposed to vulnerabilities”. He agreed with the CJI’s conclusions on the rights of transgender people in heterosexual relationships to marry, but disagreed with the CJI’s conclusions on adoption rights to same-sex couples.

While queer people have the right to “cohabit without disturbance and threat”, Justice Bhat concluded that “there is no unqualified right to marriage” and that legal recognition can only take place through enacted law. 

The judge also said that the Centre will set up a high powered committee to examine the rights and benefits to queer couples.

Justice Hima Kohli said she agreed with Justice Bhat. 

Justice Narasimha said he agreed with Justice Bhat and that there is “no unqualified right to marry”.

Centre’s view 

The central government had firmly opposed legal recognition of same-sex marriages. Prior to the hearing, it filed an affidavit arguing that this was an “urban elitist” view. 

The affidavit said the court would have to “take into account broader views and voice of all rural, semi-rural and urban population, views of religious denominations keeping in mind personal laws as well as and customs governing the field of marriage together with its inevitable cascading effects on several other statutes”.

During the hearing, the centre said legal recognition of same-sex marriages would cause “complete havoc” with the balance of personal laws in India. However, Solicitor-General Tushar Mehta said the central government was willing to form a committee to address “human concerns” of same-sex marriages without giving them legal recognition.