No legal marriage rights for same-sex couples, rules SC

The Supreme Court of India has ruled that legal recognition of same-sex marriages and civil unions can only be granted by Parliament and state legislatures. The court stated that it cannot make laws, only interpret them, and that issues relating to marriage are within the legislative domain. This ruling has disappointed millions of LGBTQ+ people in India who were hoping for greater rights and recognition. The court also declined to grant adoption rights to same-sex couples. The decision was made by a 3-2 majority.

The Supreme Court on Tuesday refused to grant legal recognition to same-sex couples and said only Parliament and state legislatures can validate marital unions in a ruling that disappointed millions Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ+) people in India.

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By a 3-2 majority, the court also declined to grant constitutional protection to civil unions and adoption rights for queer couples, noting that mandating the State to grant recognition or legal status to some unions will violate the doctrine of separation of powers and could lead to unforeseeable consequences.

“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 policy which fall in the legislative domain,” the verdict said.

The Constitution bench — comprising Chief Justice of India (CJI) Dhananjaya Y Chandrachud and justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha — was unanimous that the right to marry was not a fundamental right, and said it was beyond the remit of courts to issue a positive direction to the legislature to characterise same-sex marriages and queer relationships through a new instrument of law.

“The directions or orders of this court cannot encroach upon the domain of the legislature,” said the unanimous view of the bench, noting that Parliament and state assemblies have enacted laws creating and regulating socio-legal institution of marriage under the Constitution.

But the two sides differed on two key aspects — recognition of civil unions, considered the world over as the first step towards granting full marriage equality, and adoption rights.

The ruling crushed the hopes of some 50-odd petitioners who approached the top court, arguing that not recognising their relationships denied them material entitlements that their heterosexual peers enjoyed, and this violated their constitutional rights.

“We are deeply disappointed by the judgment today,” said Supriyo Chakraborty, a petitioner.

The verdict in the landmark case began on a hopeful note for the petitioners as CJI Chandrachud and justice Kaul read out concurring judgments decrying discrimination against queer couples, recognising civil unions and affirming the rights of LGBTQ+ people to adopt. But around 100 minutes into the pronouncement, it became clear that the two judges were in the minority when justice Bhat and Kohli concurred on their judgment and justice Narasimha read out his separate verdict.

“It was a roller-coaster of emotions for us. I was on the phone with my family and one moment, we thought we had it, and the next, it was despair,” said Sameer Samudra, a petitioner.

The focus will now shift to a high-powered committee — chaired by the Union cabinet secretary — that the government promised to set up during the hearings to examine an array of concerns affecting the rights of non-heterosexual couples and take corrective measures.

The minority judgment set out terms of reference for the panel — medical, jail visitation and financial rights, in addition to questions of succession, maintenance, and pensions – and said the recommendations shall be implemented through administrative orders. But the majority judgment confined itself to the formation of the panel.

Solicitor general Tushar Mehta, who spearheaded the Centre’s opposition to legal recognition for same-sex couples, welcomed the verdict.

“All four judgements have taken the jurisprudence of our nation and the intellectual exercise which went into writing the judgments to the next level…Today’s judgement balances the interests of individuals with the interests of a civilised society,” he said.

India read down a colonial statute that criminalised homosexuality in 2018 but stopped well short of according the community civil rights. Hearings in the same-sex marriage case that began in March resonated across the world as the petitioners hoped to make India the quickest to shift from decriminalisation to full marital rights for queer couples.

Though these hopes were dashed, petitioners said they were heartened with the positive conversations their bid generated. Around 40 countries in the world recognise same-sex couples, of which only three are in Asia – Israel, Taiwan and Nepal.

In a verdict that relied extensively on the legal principle that right to marry is not a fundamental right and eventually maintained a status quo in terms of marriage equality regime in India, the judges held that granting legal recognition to same-sex marriages would mean that even if Parliament and state legislatures did not create an institution of marriage, they would be obligated to create it because of the positive postulate encompassed in the right to marry.

“This argument cannot be accepted...Under Articles 245 and 246 of the Constitution read with entry 5 of List III to the Seventh Schedule (law making powers), it lies within the domain of Parliament and the state legislatures to enact laws recognising and regulating queer marriage,” the unanimous view held.

The judgments — separately authored by the CJI, and justices Kaul, Bhat and Narasimha — also refused to annul or read down the provisions of the Special Marriage Act (SMA) to include non-heterosexual couples within its fold, noting it would result in either removing the protective cover of interfaith couples or entering into the realm of the legislature by substituting “husband” and “wife” with gender-neutral terms such as “partner” or “spouse”.

“The court is not equipped to undertake an exercise of such wide amplitude because of its institutional limitations. This court would in effect be redrafting the laws in the garb of reading words into the provisions,” said the apex court.

All five judges were in unison that queer couples have a right to cohabit without any threat of violence, coercion, interference or discrimination, as they approved of the high-powered committee. There was also an agreed view that transgender and intersex people in heterosexual relationships would have a right to marry because such people identified themselves in binary genders, making them eligible under existing marriage laws to enter into wedlock.

The judges, however, were divided in deciding how far a court can go despite acknowledging that queerness is not an “urban elitist” concept and required the State to ascertain protection to such couples.

While the CJI and justice Kaul maintained that the right to enter into a union by queer couples is a constitutionally protected right and that the State has an obligation to recognise such civil unions and grant them benefit under law, the other three judges overruled this view. Justices Bhat, Kohli and Narasimha held that right to a civil union cannot be assigned the status of a constitutionally protected right when the statutorily protected right to marry has not been given the same status.

“In questions of such polycentric nature — whether social, or political — the court must exercise restraint and defer to the wisdom of the other branches of the State, which can undertake wide scale public consultation, consensus building and reflect the will of the people, and be in their best interest. No matter how much we empathise with the outcome sought, the means to arriving at such a destination, must also be legally sound, and keep intact, the grand architecture of our Constitutional scheme,” said the majority judgment.

Similarly, the majority judgment overruled the views of the other two judges that unmarried couples, including queer couples, would have a right to jointly adopt a child. While the CJI and justice Kaul held that the Central Adoption Resource Authority (CARA) regulation to be discriminatory in as much it restricted unmarried couples from jointly adopting a child while allowing single parent to adopt, the majority opinion of three judges emphasised that the legislative choice of including only married couples for joint adoption arises from the reality of all other laws wherein protections and entitlements, flow from the institution of marriage.

“To read down ‘marital’ status as proposed, may have deleterious impacts, that only the legislature and executive could remedy,” said the majority.

Petitioners before the top court included same-sex couples, rights activists, social workers and organisations. They challenged the constitutionality of a raft of provisions of the SMA, Hindu Marriage Act, Foreign Marriage Act and other marriage laws on the ground that they deny same- sex couples the right to marry under the existing legal framework.

Alternatively, the petitions requested the top court to read these provisions broadly so as to include same-sex marriage, focusing on the 2018 Navtej Johar and the 2017 right to privacy cases.

The Union maintained that legislative policy and compelling state interest validate only a heterogenous institution of marriage between a biological man and a biological woman, while also attacking the petitioners for propagating an “urban, elitist concept”. To be sure, the CJI in his judgment specified that this was not the case.