Same-Sex Marriage Verdict highlights: For Parliament to decide on legal status, rules SC

Three judges of the five-judge Constitution bench disagreed with the Chief Justice of India on adoption rights for LGBTQIA people but agreed that the Special Marriage Act, 1956 (SMA) cannot be interpreted in such a manner so as to enable marriage between queer persons.

Justice Ravindra Bhat, Justice Hima Kohli and Justice PV Narasimha have given two separate judgments whereby they have shown certain agreement and disagreement with CJI's order.

"This court cannot either strike down the constitutional validity of SMA or read words into the SMA because of its institutional limitations. This court cannot read words into the provisions of the SMA and provisions of other allied laws such as ... because that would amount to judicial legislation. 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," CJI Chandrachud said in his 247-page verdict.

"We are conscious that the court usually first determines if the law is unconstitutional, and then proceeds to decide on the relief. However, in this case, an exercise to determine whether the SMA is unconstitutional because of under-inclusivity would be futile because of the limitations of this court's power to grant a remedy," Justice Chandrachud said.

• No legal recognition of same-sex marriages

• No constitutional or fundamental right to civil unions

• Centre's high-powered committee to examine concerns of same-sex couples

• No right for queer couples to jointly adopt

Read in detail: Supreme Court's same-sex marriage verdict

It took the Supreme Court almost two hours on Tuesday to pronounce the four separate judgements in the same-sex marriage case.

A five-judge constitution bench headed by Chief Justice D Y Chandrachud assembled at around 10:52 AM and the pronouncement over verdicts commenced after a couple of minutes.

The operative parts of the four judgements penned by the CJI, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat and Justice P S Narasimha were read out till 12.42 pm.

"Obviously, it falls below expectations," senior advocate Sanjoy Ghose said, quickly adding that the top court's landmark ruling nonetheless finds that the community's demand for legal recognition to their union as a civil union or marriage is not frivolous and rather a "baby step" in the right direction.

"It is one step ahead of the stage where you (first) decriminalise homosexuality and now, you are moving towards recognising (their union) ... the effective orders that they passed fall far short and far below expectations. Something positive (is that) at least all five (judges) were united on the fact that this is not a frivolous demand," Ghose said.

City-based lawyer Utkarsh Singh echoed Ghose's view on the ruling failing to live up to the hopes of the LGBTQIA community and said the issue is now a "lost cause".

Singh, who has represented in courts same-sex couples seeking refuge from family threats, said "despite all the good words, this judgment makes no significant impact to the plight of the LGBTQIA ".

He said the majority of the directions issued on Tuesday for the protection of gay couples already exist in view of the Supreme Court's ruling in the Shakti Vahini case.

"Mere issuance of guidelines is no solution as the guidelines (issued in the Shakti Vahini case) are yet to be complied with. Only Delhi has complied.... Mere liberal interpretation of the SMA (Special Marriage Act) could have helped the cause without delving into personal laws. The issue is now a lost cause," Singh said.

Queerness is not "urban" or "elite" and persons of any geographical location, background or caste may be queer, Chief Justice of India D Y Chandrachud said on Tuesday he disagreed with the Centre's contention that the petitions seeking legal validation of same-sex marriage reflected an "urban elitist" view.

The CJI said that to imagine queer persons exist only in urban and affluent spaces is to erase them even as they exist in other parts of the country and it would also be a mistake to conflate the "urban" with the "elite".

This renders invisible large segments of the population who live in urban spaces but are poor or otherwise marginalised, he said, adding that urban centres are themselves geographically and socially divided along the lines of class, religion, and caste and not all those who live in cities can be termed elite merely by virtue of their residence in cities.

All the five judges were unanimous in refusing to accord legal recognition to same-sex marriage under the Special Marriage Act and observed it is within Parliament's ambit to change the law for validating such union.

They, however, made an impassioned pitch for granting benefits and privileges that are otherwise available to married couples, to people in same-sex relationships, and steps to ensure they are not discriminated against.

"SC has upheld the principle of parliamentary supremacy. It is not up to the courts to decide who gets married under what law," AIMIM Chief Asaduddin Owaisi said on social media platform X. "My faith and my conscience say that marriage is only between a man and a woman. This is not a question of decriminalisation like in the case of 377, it is about recognition of marriage. It is correct that the state cannot extend it to anyone and everyone."

"The Supreme Court's decision on same sex marriage is worth welcoming. Our democratic parliamentary system can seriously discuss all the issues related to this and take appropriate decisions," Sunil Ambekar, Akhil Bharatiya Prachar Pramukh of the RSS, said in a post on X.

• No legal recognition of same-sex marriages

• No constitutional or fundamental right to civil unions

• Centre's high-powered committee to examine concerns of same-sex couples

• No right for queer couples to jointly adopt

Read in detail: Supreme Court's same-sex marriage verdict

"It is with bated breath that everyone has waited for the same-sex marriage judgment and I am so happy to see that in the judgment of the Chief Justice the Chief Justice has in fact said the same bundle of rights which every married couple has should be available to the same-sex couple," said senior advocate Geeta Luthra, who appeared for some of the petitioners in the marriage equality case, whose ruling was pronounced by the apex court today.

Another petitioner Harish Iyer, who is an LGBTQIA rights activist, said, "Though at the end, the verdict was not in our favour so many observations (by Supreme Court) made were in our favour. They have also put the responsibility on Central govt and Central govt's Solicitor General..."

"(Now) it is important for us to go to our elected government, MPs and MLAs and tell them we are as different as two people. War is underway...it might take some time but we will get societal equality," Iyer added.

One of the other petitioners and activist Anjali Gopalan said she was disappointed with the same-sex marriage equality verdict, but what was crucial was that the legality of marriage of members from the trans community was clarified.

"The only good thing, and I think at least for the trans community, there's clarity, which is a good thing that's happened, and also the definition of discrimination has been expanded and clarified, which is also a good thing that's happened," Gopalan said.

She contended she was not expecting that full marriage rights would happen so quickly, but definitely was expecting a lot more on civil unions and civil rights.

"And that would have been good. It would have been a step forward. But it's really unfortunate that that has not happened," Gopalan said.

ANI

Solicitor General of India Tushar Mehta has welcomed Tuesday's Supreme Court's judgement refusing to recognise the legality of same-sex marriages.

"I wholeheartedly welcome the judgment. I am happy that my stand has been accepted. All four judgements have taken the jurisprudence of our nation and the intellectual exercise that went into writing the judgments at the next level. There are very few courts in the world where one can expect this level of intellectual and scholarly judicial exercise. This judgement would be read across jurisdictions," Tushar Mehta said while speaking to ANI after the top court's verdict.

Mehta, who argued on behalf of the Centre said that the case was beyond the scope of the Supreme Court and fell within the domain of Parliament. He further said that apex court's judgement balances the interests of individuals with the interests of a civilised society.

"It is an important step in jurisprudential development on the question of separation of powers and provides vivid and eloquent insights into the working of the Parliament, the Executive and the Judiciary which functions complimenting each other strictly as per the Constitution," the Soliciter General of India said.

Among the 34 countries where same-sex marriage is legal at present are:

• Argentina: Same-sex marriage was legalised in 2010.

• Australia: Same-sex marriage was legalised in 2017.

• Germany: Same-sex marriage was legalised in 2017.

• Mexico: Same-sex marriage was legalised in Federal District (Mexico City) in 2010, while the legalisation dates vary in different other states.

• United Kingdom: Same-sex marriage was legalised in 2014.

• Scotland: Same-sex marriage was legalised in 2014.

• Northern Ireland: Same-sex marriage was legalised in 2020.

Since July 9, 2015, married same-sex couples throughout the United States have had equal access to all the federal benefits that married opposite-sex couples have.

There are 35 countries with legal recognition other than marriage (eg, civil unions or registered partnerships).

A civil union (also known as a civil partnership) is a legally recognised arrangement similar to marriage, created primarily as a means to provide legal recognition for same-sex couples. Civil unions grant some or all of the rights of marriage.

Some of the countries with legal recognition are:

• Denmark: It was the first country to legalise civil unions for same-sex couples in 1989.

• Brazil: Civil unions were first created for opposite-sex couples in 2002.

• Andorra: Legal recognition for same-sex couples was granted in 2014.

• Chile: Legal recognition for same-sex couples was granted in 2015.

• Estonia: Legal recognition for same-sex couples was granted in 2016.

• Japan: Legal recognition for same-sex couples was granted in some municipalities before 2021.

• Slovenia: Legal recognition for same-sex couples was granted in 2017.

PTI

In a post on X, Congress general secretary Jairam Ramesh said, "On the same sex marriage and related issues we are studying the different and differing judgments delivered in the Supreme Court today and will have a detailed response subsequently."

"Indian National Congress has always stood with all our citizens to protect their freedoms, choices, liberties and rights. We, as a party of inclusion, firmly believe in non discriminatory processes — judicial, social, and political," Ramesh said.

“This is historic! Transgenders inside heterosexual relations are right away given the right to marry, rights to adoption and for whole LGBTQIA umbrella,” said Bappaditya Mukherjee, Founder and Director of ‘Prantakatha’, an NGO.

“The SC has directed both the Centre and state governments to facilitate all constitutional privileges to the community through law in an expedited manner with specific directions with respect to privileges associated with civil union,” he said.

However, Samata Biswas, a professor at Sanskrit College and University, who teaches gender studies, is not euphoric.

“The Supreme Court denying marriage equality to same-gender couples, and pushing it to the currently regressive legislature is definitely a setback for the queer movement in India,” she said.

The five-judge Constitution bench refused to grant legal recognition to same-sex marriages and said it is the job of Parliament to change the Special Marriage Act.

“While matrimony is not and should not be the only form of recognised partnership, denying marriage equality strengthens regressive and conservative voices in society,” Biswas, also Secretary of Calcutta Research Group, a thinktank.

The majority judges by 3:2 held that non-heterosexual couples cannot be granted the right to jointly adopt a child. However, CJI and Justice Kaul said that these couples have the right to jointly adopt a child.

Regulation 5(3) of the Adoption Regulations as framed by the Central Adoption Resource Authority (CARA) is violative of Article 15 of the Constitution for discriminating against the queer community, the minority verdict said.

"It lies within the domain of parliament and state legislatures to determine the law on marriage," Supreme Court Chief Justice D.Y. Chandrachud said during his verdict.

• No legal recognition of same-sex marriages

• No constitutional or fundamental right to civil unions

• Centre's high-powered committee to examine concerns of same-sex couples

• No right for queer couples to jointly adopt

Read in detail: Supreme Court's same-sex marriage verdict

Even if the right to marriage has not been given, the CJI has said that the same bundle of rights which every married couple has should be available to same-sex couples: Gita Luthra, Senior Advocate who appeared for some of the petitioners

Though at the end, the verdict was not in our favour, so many observations made were in our favour. The court also put the responsibility on Central govt and the govt's Solicitor General said so many things against us so it is important for us to go to our elected govt, MPs and MLAs and tell them we are as different as two people. War is underway...it might take sometime but we will get societal equality: Harish Iyer, petitioner-activist

“I welcome the decision of the Supreme Court where they have not allowed same-sex marriage,” says Adish Aggarwala, President, Supreme Court Bar Association (SCBA).

Supreme Court refues to grant constitutional validity to same-sex marriages by a 3-2 majority. Also, no constitutional or fundamental right to civil unions, Centre's proposed high-powered committee to examine concerns of same sex couples, and no right for queer couples to jointly adopt.

Right to marry is only a statutory right, and not a constitutional one, says Justice Narasimha as he reads out his judgment, the fourth and final of the bench.

“Agree with Justice Bhat that there can't be a right to civil union,” says Justice Narasimha.

Justice Bhat, however, concurs with the Chief Justice that the Special Marriage Act should not be read down to include same-sex marriages. He also agrees that transgender persons in heterosexual relationships should get to marry as per existing laws.

Justice Bhat also disagrees with CJI on enforcing civil unions through judicial orders. He disagrees on a right to civil unions too, besides a bouquet of entitlements that the CJI appealed for in his judgment.