SC refuses to legalise same-sex marriage, says queer couples have right to cohabit
The Supreme Court were unanimous that it is beyond their remit to issue a positive direction to the legislature to accord legal recognition to same-sex marriage
NEW DELHI: The Supreme Court on Tuesday declined to grant legal recognition to same-sex marriages, holding that it is only for Parliament and state legislatures to create such institutions and grant them legal validation.
The constitution bench of five judges, comprising Chief Justice of India Dhananjaya Y Chandrachud and justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha, were unanimous that it is beyond the remit of courts to issue a positive direction to the legislature to accord legal recognition to same-sex marriages.
The judges were also unanimous in giving a go ahead to a high-powered committee proposed by the Centre in May to examine the concerns of same-sex couples and moot certain corrective measures.
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The judgments, separately authored by the CJI and justices Kaul, Bhat and Narasimha, also refused to annul or tweak the provisions of the Special Marriage Act (SMA) to include non-heterosexual couples within its fold, even as they declared that queer couples have a right to cohabit without any threat of violence, coercion of interference.
The judges, however, were a divided lot in deciding how far the court could go with the majority of three judges rejecting the view that there can be a right to form civil unions and that the State would be under an obligation to ensure a bouquet of benefits for the non-heterosexual couples, as permissible under the law.
The CJI and justice Kaul ruled in favour of recognising a right to form a civil union, but justices Bhat, Kohli and Narasimha emphasised that there is no unqualified right to marriage under the Constitution and thus, it cannot be recognised as a fundamental right. When the right to marry is not a fundamental right but just a statutory right, the majority held that there cannot be a right to civil union that can be legally enforceable.
By the same majority, the court also held that non-heterosexual couples cannot be granted the right to jointly adopt a child.
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Following a marathon hearing that lasted ten days of intense arguments from both sides in March and April, the five-judge bench on May 11 reserved its verdict in a batch of over 20 petitions that implored the judiciary to step in owing to the alleged failure of the executive to take the lead and grant the same-sex couples equality with heterosexual couples in matters of marriage and incidents of a marriage, including adoption, succession, inheritance, divorce, among others.
The court had at the time clarified that the remit of the proceedings would confine to legal validation of same-sex marriage within the fold of the Special Marriage Act (SMA).
The 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. They contended that the court would have to eventually read down the SMA and other statutes to recognise marriage as a union independent of gender and sexual identity or strike down the legal provisions that use the terms ‘men’ and ‘women’ for validating a marriage.
The petitioners harped upon the 2018 judgment in the Navtej Johar case which decriminalised sexuality and put sexual autonomy on a high pedestal, besides banking on the 2017 nine-judge bench judgment in the right to privacy case which encapsulated sexual orientation as an aspect of privacy.
They submitted that same-sex marriages can be accorded legal recognition under the SMA to grant dignity to their unions, besides ascertaining the community’s access to social security and other welfare benefits.
Some of the petitions also challenged the validity of a legal requirement under the SMA (Sections 5 to 8) to issue a 30-day public notice inviting objections to an intended marriage, terming the provision patriarchal and an apparent invasion of privacy and right to marry a person of one’s own choice.
The Union government maintained throughout the proceedings 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”.
Legal validation of same-sex marital unions will cause a “complete havoc” with the delicate balance of personal laws in the country and in accepted societal values, the government told the Supreme Court in an affidavit filed in March.
It maintained that Parliament has designed and framed the marriage laws in the country to recognise only the union of a man and a woman to be capable of legal sanction, and thereby claim legal and statutory rights and consequences.
“This definition is socially, culturally and legally ingrained into the very idea and concept of marriage and ought not to be disturbed or diluted by judicial interpretation...Any other interpretation will make all statutory provisions unworkable apart from being completely contrary to the consistent legislative policy which is based upon the considered opinions of lawmakers, based on cultural ethos and societal values in each country,” it said.
According to the Centre, a marriage cannot be viewed as merely a concept within the domain of privacy of an individual when a formal recognition of such human relationships has many statutory and other consequences on couples, as well as their children, under various legislative enactments, covering issues such as divorce, maintenance, succession, adoption and inheritance.
During the arguments, it opposed the plea for legal recognition, arguing that granting legal recognition to a union is only for Parliament to decide though there are no curbs on having homosexual relations or living together as a couple.
Even as it agreed to set up an inter-ministerial committee, headed by the cabinet secretary, to examine the “administrative steps” that the Centre can consider for ensuring certain benefits for the same-sex couples even in absence of a legal recognition of marriage, the government urged the Constitution bench to refrain from issuing any declaration - either of acceptance of any right for same-sex couples or acceptance of the very relationship.