SC Says Queer Couples Can Live-In, But Doesn't Legalise Marriage. Onus On Parliament Now

The Supreme Court has said that queer people have the right to choose their partners like heterosexual ones but added that the right to marry cannot be regarded as a fundamental right.

Same-Sex Marriage Verdict: The Supreme Court on Tuesday made a range of crucial observations while delivering its judgment on the legal validation of same-sex marriage in the country. The court said that queer couples can have a live-in relationship, choose their partners, have the right to gender identity, right to sexual orientation, and they have full freedom in the same but recognisation of their marriage rests with the Parliament. The court, in a 3:2 verdict, said that it is up to the state to ensure what petitioners are seeking.

CJI DY Chandrachud and Justice Sanjay Kishan Kaul agreed to the right of civil unions for same-sex couples saying it flows from Part 3 of the Constitution, whereas Justices S Ravindra Bhat, Hima Kohli and PS Narasimha disagreed.

The verdict came on a batch of petitions seeking the right to marriage for members of the LGBTQIA+ community under the Special Marriage Act, 1954. A Constitution bench of Chief Justice of India DY Chandrachud and Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha delivered the judgment on Tuesday (October 17), after hearing the pleas for ten days starting April 18, 2023. The bench bench reserved its judgment on May 11, 2023. 

Twenty petitions were filed by same-sex couples, and other LGBTOIA+ activists challenging the provisions of the Special Marriage Act 1954, Hindu Marriage Act 1955, and the Foreign Marriage Act 1969. The petitioners’ focus was that these legislations, in their present form, do not recognise non-heterosexual marriages. They argued that this non-recognition is discriminatory against the LGBTQIA+ community. 

Delivering his judgment, Justice Ravindra Bhat noted that it is being asked to enable civil marriage in same-sex relationships, and the same cannot exist in the "absence of a statute".

"This is not a case where the Court can require the State to create a legal status. Recognition for Civil union cannot exist in the absence of a legislation. Creation of an institution depends on State action which is sought to be compelled through the agency of the Court," he said. 

Justice Bhat noted that denial of benefits such as a PF, ESI, pension, etc to queer partners may have an adverse discriminatory effect. 

On adoption, the CJI said that queer couples can adopt a child. He said that the court is relying on the assurance of the Solicitor General for entitlement of benefits to queer people. Chandrachud said the panel must be chaired by Cabinet Secretary and should have experts of domain knowledge and members of queer communities in the panel.

However, Justice Bhatt disagreed with the observation on the adoption of children by queers that was made by the CJI.

"We disagree with the CJI on the right of queer couples to adopt and we voice certain concerns. This is not to say that unmarried or non-heterosexual couples can't be good parents.. ..given the objective of section 57, the State as parents patriae has to explore all areas and to ensure all benefits reach the children at large in need of stable homes," he said.

Conclusion Of Judgement

1. No legal recognition to the marriage of same-sex couples. Responsibility for the same with the legislature.

2. The centre can form a high-level panel to look into issues faced by same-sex couples in matters relating to insurance, PF, and pension among others.

3. Same-sex couples cannot adopt a child.

 

CJI DY Chandrachud said there are four judgments. "There is judgment by me, Justice Kaul, Justice Bhat and Justice Narasimha. There is a degree of agreement and a degree of disagreement on how far we have to go," he said.

He said that the right to marry cannot be accepted as a fundamental right.

CJI On Separation Of Powers And Judicial Review

The doctrine of separation of power doesn't bar judicial review, the Chief Justic of India said while reading a part of his order.

"Doctrine of separation of powers means that each of the three organs of state perform distinct functions. No branch can function any others' function," he said.

"The Union of India suggested that this Court will violate the doctrine of separation of powers if it determines the list. But the doctrine of separation of powers does not bar the power of judicial review," the CJI said.

He said that the Constitution demands this Court protects the fundamental rights of citizens. 

Queerness Not Urban Elite: CJI DY Chandrachud

Reading a part of his judgment, the CJI said that homosexuality or queerness is not an urban concept or restricted to the upper classes of society. He added that to imagine queer as existing in urban spaces would be like to erase them and it is to mix urban with elite.

He said that queerness can be regardless of one's caste or class or socio-economic status. The CJI said that the right to enter into a Union includes the right to choose one's partner and the right to recognition of that union.

Can't Struck Down Special Marriage Act: SC

CJI noted that in the present batch of petitions, the Court holds that Section 4 of the Special Marriage Act is unconstitutional because of being under-inclusive, it has to either strike it down or read it down.

"If Special Marriage Act is struck down, it will take the country to the pre-Indpendence era. If the Court takes the second approach and reads words into the SMA, it will be taking up the role of legislature...Whether a change in the regime of the Special Marriage Act is for the Parliament to decide," he said.

CJI added, "This Court must be careful to not enter into the legislative domain. It is for the Parliament to decide whether a change in the regime of the Special Marriage Act is needed."

Justice SK Kaul and Justice Ravindra Bhat agreed with CJI's observations on SMA.

"I agree that entitlements flowing from marriage is regulated by regulations and laws and tinkering with SMA will have a cascading effect. I agree with SG Mehta," Justice Kaul said.

Whereas, Justice Ravindra Bhat said, "I agree queerness is not urban or elite. We do agree that there is no fundamental right to marry and that SMA is not unconstitutional and that words cannot be read into and that transgender persons has the right to marry under the prevalent laws." 

 

Transgenders Can Marry Under Existing Laws 

CJI and the other judges agreed that transgenders can get into heterosexual marriage under the existing laws. Transman-woman and transwoman-man can get into legal marriage under existing personal laws.

"We agree with the CJI on the right of transgender persons in heterosexual relationships to marry as per existing laws," Justice Bhat had observed.

 

Directions By CJI Chandrachud

The Chief Justice of India gave the following directions to the Union Govt, State Govts and UTs:

1. Queer community is not discriminated against.


2. There is no discrimination in access to goods and services.


3. Sensitise public about queer rights.


4. Create hotline for queer community.


5. Create safe houses 'Garima Grih' for queer couples.


6. Ensure inter-sex children are not forced to undergo operations. No person shall be forced to undergo any hormonal therapy.


7. There shall be no harassment to queer community by summoning them to police station solely to enquire about their sexual identity. Police should not force queer persons to return to their natal family. Police should conduct a preliminary enquiry before registering an FIR against a queer couple over their relationship.