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Journalism of Courage
A five-judge Constitution Bench headed by Chief Justice of India (CJI) D Y Chandrachud on Tuesday (October 17) unanimously declined to recognise same-sex marriages. The Bench, also comprising Justices Sanjay Kishan Kaul, Ravindra Bhat, Hima Kohli, and P S Narasimha, in a 3-2 majority verdict, also declined to allow civil unions for non-heterosexual couples. (For ‘civil unions’, scroll down.)
Here are five key takeaways from the verdict:
ONE, all five judges on the Bench, including the CJI and Justice Kaul, who batted for civil unions, agreed that there is no fundamental right to marry under the Constitution.
TWO, all five judges also unanimously agreed that it is not possible to tweak the Special Marriage Act, 1954 by using gender neutral language to allow same-sex marriage.
The petitioners had asked the SC to interpret the word marriage as between “spouses” instead of “man and woman”. Alternatively, the petitioners had asked for striking down provisions of the SMA that are gender-restrictive.
CJI Chandrachud said striking down the SMA provisions would jeopardise the legal framework for interfaith and inter-caste couples. He added that interpreting the SMA in a gender neutral way would amount to “judicial lawmaking”, which would violate the doctrine of separation of powers.
THREE, four of the five judges — CJI Chandrachud, Justice Kaul, Justice Bhat, and Justice Narasimha — wrote individual opinions. Justice Bhat, Justice Kohli (who concurred with Justice Bhat), and Justice Narasimha formed the majority, while the CJI and Justice Kaul wrote minority opinions in favour of extending civil union to same-sex couples.
A ‘civil union’ refers to the legal status that allows same-sex couples specific rights and responsibilities that are normally conferred upon married couples. Although a civil union resembles a marriage, it does not have the same recognition in personal law as marriage.
The CJI in his opinion, and Justice Kaul in his opinion concurring with the CJI, said that the right to form unions emanates from the fundamental right to freedom of speech and expression, and the right to life. The minority view also said that with civil union status, same-sex couples must be extended the “bouquet of rights” that heterosexual couples are entitled to.
FOUR, on the “bouquet of rights”, all five judges took note of the Centre’s stand that a high-level Cabinet committee will look into rights that can be conferred on non-heterosexual couples. This would range from opening joint bank accounts, same-sex spouses being a beneficiary for provident fund, pension or inheritance to such spouses, being able to take medical decisions for the other spouse, etc.
FIVE, the minority view by CJI Chandrachud and Justice Kaul struck down specific guidelines by the Central Adoption Resource Authority (CARA) to the extent that it disallows same-sex or unmarried couples from jointly adopting a child.
The CJI in his opinion said that it is discriminatory to assume that only married, heterosexual couples can provide a safe space for raising children.
