Same-Sex Marriage Verdict Explained Live: Supreme Court verdicts have gone a long way in securing rights for the LGBTQIA+ community in India. (Express photos)Supreme Court Same-Sex Marriage Verdict Explained Live: A five-judge bench of the Supreme Court that was headed by Chief Justice of India DY Chandrachud, unanimously ruled against legalising same sex marriage in India today (October 17). The bench also ruled in a 3:2 verdict against civil unions for non-heterosexual couples. It comprised Justices Sanjay Kishan Kaul, Ravindra Bhat, Hima Kohli and PS Narasimha.
In his opinion, the CJI has left it to the Parliament to decide on the issue. The CJI and Justice Kaul batted for civil unions for non-heterosexual couples. The CJI added that the SC cannot strike down the provisions of the Special Marriage Act (SMA) or read words differently. The focus of the petitions filed is the gender-neutral interpretation of the SMA. It is a secular legislation designed to facilitate inter-caste and inter-faith marriages. The petitioners have sought a broader interpretation of the SMA to include same-sex marriages too.
Justice Kaul said the legal recognition of civil unions for non-heterosexual couples represents a step towards marriage equality. But all five judges agreed that there is no fundamental right to marry and in a majority verdict, the court has ruled against same-sex marriage. The majority view is that the legislature or Parliament must decide on bringing in same-sex marriage.
The top court had heard the arguments over 10 days in April and May. Arguments ranging from the right to equality to the right to privacy, the legal privileges and rights bestowed by marriage, and the impact of same sex marriages on children were made. Those opposing the petitioners included the Central government, the national child rights body NCPCR, and the Jamiat-Ulama-i-Hind, a body of Islamic scholars.
An LGBT flag at the Supreme Court, Delhi, India after the IPC Section 377 verdict of the Supreme Court in 2018. (Express Photo by Abhinav Saha)
All five judges agree there is no fundamental right to marry and in a majority verdict, the court has ruled against same-sex marriage. The majority view is that the legislature must decide on bringing in same-sex marriage. Justice Hima Kohli says she agrees with the view of Justice Ravindra Bhat, as does Justice Narasimha.
The CJI and Justice Kaul had spoken in favour of introducing civil unions for non-heterosexual couples.
On the bouquet of rights that come with legal recognition of marriage, such as rights related to succession and adoption of children, Justice Bhat also says the Centre’s high powered committee must take a call on making policy changes.
On adoption, Justice Bhat disagrees with the CJI’s opinion of allowing non-heterosexual couples to jointly adopt. The CJI had said that the government agency Central Adoption Resource Authority's (CARA) guidelines discriminate against atypical, unmarried couples to adopt children.
Justice Bhat says that his opinion must not be read to preclude queer persons from celebrating their commitment to each other or relationship in whichever way they wish.
Justice Ravindra Bhat, in his opinion, leaves it to the Parliament to decide on the matter of marriage equality for queer or LGBTQ couples. He says, “We do not particularly subscribe to the views of CJI on democratising intimate spaces... these outcomes were brought by legislative acts.”
Earlier during the hearings on marriage equality this year, Solicitor General Tushar Mehta argued on behalf of the Central government that 160 laws would be impacted in the process of bringing marriage equality. Consequently, Mehta said that Parliament is the only forum to make such laws. Click here to read our explainer on the arguments made back then.
Justice Bhat further says that a citizen cannot seek the construction of a network of roads to enforce the right to travel. He cites this example to argue that the Court cannot grant a bouquet of rights without a legislative framework for same-sex marriage to give effect to the rights of queer people.
Justice Kaul also joins CJI in batting for civil unions for non-heterosexual couples. He says that legal recognition of civil unions for non-heterosexual couples represents a step towards marriage equality.
What exactly are civil unions and how do they differ from marriages? Here's our explainer.
The CJI’s opinion also says the Central Adoption Resource Authority (CARA) guidelines discriminate against atypical, unmarried couples to adopt children. CARA, a government agency under the Union Ministry of Women and Child Development, lays down the rules for adopting children in India.
By striking down the Special Marriage Act provisions, the benefits of progressive legislation will be lost, says CJI Chandrachud in his opinion. The SMA governs a civil marriage where the state sanctions the marriage, rather than the religion.
He also CJI directs the Centre to:
1. Ensure queer community is not discriminated against.
2. Ensure there is no discrimination in access to goods and services.
3. Sensitise the public about queer rights.
4. Create a hotline for the queer community.
5. Create safe houses or Garima grih for queer couples.
6. Ensure inter-sex children are not forced to undergo operations.
7. No person shall be forced to undergo any hormonal therapy.
He also issues guidelines to police to not harass queer people or force them to return to their natal families.
Throughout the hearings, mentions of the Special Marriage Act have cropped up. The CJI has also mentioned it in his opinion today. For a detailed explanation of what the Act is, you can click here to read our explainer.
CJI Chandrachud says that it is incorrect to categorise marriage as a stagnant and unchanging institution. However, he says the Supreme Court cannot strike down the provisions of the Special Marriage Act or read words differently. CJI’s opinion leaves it to the Parliament to decide on the issue.
There are four judgements, one each by CJI DY Chandrachud, Justice Kaul, Justice Bhat and Justice Narasimha. The CJI, in his opinion, does not accept the Centre’s stand that the issue of same sex marriage can only be dealt with the Parliament and not by the SC. He says, “The doctrine of separation of powers cannot stand in the way of enforcement of fundamental rights…”
He also says in his opinion, “Queerness is neither urban nor elite”. Earlier in April, the Supreme Court said there was no data from the government to back its contention that “what is presented before” it by the petitioners seeking legal recognition of same sex marriages “is…mere urban elitist views for the purpose of social acceptance”.
Over the years, some verdicts have helped alter the legal landscape of LGBTQ rights. These include the 2018 'Navtej Johar' ruling, which essentially said that the LGBTQ community are equal citizens and underlined that there cannot be discrimination in law based on sexual orientation and gender.
Here are some other notable verdicts.
While urging the Court to leave the issue to Parliament, Solicitor General Tushar Mehta had argued during the hearings that the law cannot be re-drafted again to allow same-sex marriage.
Here are the six key arguments made by the Centre, ranging from invoking the religious definitions of marriage to the idea that a decision on the matter can only be made in Parliament.
During the hearings in the SC earlier this year, the Centre contested the maintainability of the petitions and also the judiciary’s right to confer legal recognition on the “socio-legal institution” of marriage. The CJI then clarified that the hearing’s scope would be limited to developing a notion of a “civil union” that finds legal recognition under the Special Marriage Act.
What exactly does a 'civil union' mean and how does it differ from a marriage? Click here to read our explainer.
According to the Human Rights Campaign, a US-based LGBTQ advocacy group, only 32 countries worldwide recognise same sex marriage.
These include the United States, Canada, Australia, Argentina, South Africa and Taiwan. In 2019, Taiwan became the first Asian country to recognise same sex marriage. The legislation for it was brought in following a court ruling in 2017
In most countries that do so, marriage equality was introduced by legislation. It was recognised through a court ruling in only 10 countries. Read our explainer on the global scenario here.
In a hearing that spanned 10 days in April-May this year, the proceedings before a five-judge Bench led by CJI DY Chandrachud were live-streamed for the public.
You can click here to read a recap of the arguments made by both sides.