A majority ruling from a five-judge Supreme Court Constitution bench has clarified that LGBTQIA+ couples do not possess an absolute right to marriage and that the legal acknowledgment of civil unions can only be established through enacted legislation. The bench, led by Chief Justice of India DY Chandrachud along with Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, delivered the decision that had been under consideration since May 11 this year.
While emphasizing that the judgment does not impede the rights of Queer individuals to form relationships, the court stated that the challenge to the Special Marriage Act (SMA) based on under-classification is unsubstantiated. Justices Ravindra Bhat, PS Narasimha, and Hima Kohli concurred on these stances, while CJI Chandrachud and Justice Sanjay Kishan Kaul expressed differing views.
The bench clarified at the outset that there were four separate judgments in the case, including one by CJI Chandrachud, another by Justice Sanjay Kishan Kaul, a third by Justice Ravindra Bhat, and the last by Justice Narasimha.
In his ruling, the CJI directed the Union and State governments to ensure non-discrimination against the Queer community. The court stressed the importance of ensuring equal access to goods and services, educating the public about queer rights, establishing a hotline for the community to prevent harassment, providing safe houses for queer couples, and prohibiting the forced medical treatment of intersex children.
Moreover, the CJI emphasized that police should not summon queer individuals solely to inquire about their sexual identity, should not coerce them to return to their families, and must conduct a preliminary inquiry before registering an FIR against a queer couple for their relationship.
The CJI further maintained that the Court holds the power to address the case, recognizing queerness as a natural phenomenon prevalent in India throughout history. Highlighting that marriage is not a static institution, the Supreme Court cannot strike down the Special Marriage Act or introduce provisions into the Act due to institutional constraints. The failure of the State to acknowledge the range of rights arising from a queer relationship amounts to discrimination, the CJI emphasized.
Stressing that the right to enter into a union cannot be limited based on sexual orientation, the CJI affirmed that transgender persons in heterosexual relationships have the right to marry under existing laws, including personal laws. Regarding the adoption of children by queer couples, the CJI stated that unmarried couples, including queer couples, can jointly adopt a child.
To oversee the rights and entitlements of persons in queer unions, the CJI directed the Union Government to constitute a committee. This committee is tasked with considering the inclusion of queer couples as a family on ration cards, allowing them to nominate joint bank accounts, and recognizing rights related to pension and gratuity. The committee’s report is to be reviewed at the Union Government level.
In his concurring opinion, Justice Sanjay Kishan Kaul noted that the legal recognition of same-sex unions is a step toward marriage equality, emphasizing the importance of preserving autonomy without infringing on the rights of others.
Justice Ravindra Bhat and Justice Narasimha dissented from the CJI on various aspects of the judgment. Justice Bhat emphasized that while there is a right to a relationship falling within Article 21, there is no unqualified right to marriage. Stressing that the Court cannot impose obligations on the State without a constitutional right to marry or legal recognition of unions among non-heterosexual couples, Justice Bhat asserted that it is the legislature’s responsibility to establish a legal framework for queer couples.
Disagreeing with the CJI on the right of queer couples to adopt, Justice Bhat raised certain concerns, particularly regarding the potential vulnerabilities of women under a gender-neutral interpretation of the Special Marriage Act.
In conclusion, Justice Bhat highlighted that conferring legal status to a civil union can only occur through enacted law but clarified that this finding does not impede the right of queer individuals to enter into relationships. Additionally, the challenge to the Special Marriage Act on the grounds of under-classification was deemed unsubstantiated, and the State was directed to ensure that queer persons are not harassed.
Justice Hima Kohli and Justice Narasimha concurred with Justice Ravindra Bhat’s perspective.
The five-judge Constitution bench was addressing a set of petitions related to marriage equality rights for the LGBTQIA+ community. The order had been pending since May 11, following the conclusion of arguments from all parties.
During the hearings, the Centre opposed the plea, emphasizing that the parliament, not the court, should consider the issue. While the Centre dismissed the concept as urban and elitist, the court did not share the same view. The Centre, however, agreed to examine issues related to granting certain rights to LGBTQIA+ individuals but opposed legal recognition for same-sex couples.
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