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A five-judge Constitution Bench of the Supreme Court headed by Chief Justice of India (CJI) D Y Chandrachud on Tuesday refused to grant legal status to same-sex marriages. While two judges — the CJI and Justice Sanjay Kishan Kaul — recognised that queer couples can form “civil unions”, they were in the minority. The majority of three judges said that the issue lay exclusively in the domain of the legislature.
Here’s what the judges said on four key questions.
The petitioners had argued that there exists a fundamental right to marry a person of one’s own choice under the Constitution, and that the court must address the denial of that right. If the court recognised this as a fundamental right (like it did in the case of privacy in the 2017 Aadhaar ruling), then it would cast an obligation on the state to protect this right.
MINORITY VIEW: CJI Chandrachud did not agree with the petitioners’ argument that marriage is an inherent right that the state only regulates. The minority view stated that marriage may not have attained the social and legal significance it currently has, if the state had not regulated it through law.
“Thus, while marriage is not fundamental in itself, it may have attained significance because of the benefits which are realised through regulation,” the verdict said.
MAJORITY VIEW: Agreeing with the CJI on this issue, the majority view differentiated between what is “fundamentally important to an individual” from an enforceable fundamental right. “The fundamental importance of marriage remains that it is based on personal preference and confers social status. Importance of something to an individual does not per se justify considering it a fundamental right, even if that preference enjoys popular acceptance or support,” Justice Bhat said.
The majority opinion also noted that the logic in many decisions by courts in the US that have underlined the rationale for declaring the right to marry a fundamental right as “being essential to the orderly pursuit of Happiness (as it appears in their Declaration of Independence) by free persons” may not be sound.
The key framing of how the court can recognise same-sex marriage was by allowing a gender-neutral interpretation of the legislation that governs a civil marriage in which the state, rather than religion, sanctions the marriage.
The SMA was enacted in 1954 to enable marriage between inter-faith or inter-caste couples without them giving up their religious identity or resorting to conversion.
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.
MINORITY VIEW: On the expansive reading, CJI Chandrachud said the court could not allow that, because it would “in effect be entering into the realm of the legislature”. If the court were to instead grant the second option to read down the SMA to the extent that it is gender restrictive, “it would take India back to the pre-Independence era where two persons of different religions and caste were unable to celebrate love in the form of marriage.”
MAJORITY VIEW: While arriving at the same conclusion, Justice Bhat stated that the court could not interpret the SMA to include same-sex couples since the objective of the legislation is not to include same-sex couples within the realm of marriage.
“The provisions and the objects of the SMA clearly point to the circumstance that Parliament intended only one kind of couples, i.e., heterosexual couples belonging to different faiths, to be given the facility of a civil marriage,” Justice Bhat said.
The petitioners had argued that the guidelines of the Central Adoption Resource Authority (CARA), which does not allow unmarried couples to jointly adopt children, is discriminatory against queer couples who cannot legally marry.
The guidelines allow only a couple who have been in at least two years of a stable marital relationship to be eligible to adopt. Individually, queer persons can adopt as single people. However, a single male is not eligible to adopt a girl child — even though a single female is eligible to adopt a child of any gender.
MINORITY VIEW: The CJI in his opinion struck down certain CARA regulations on the grounds that the legislation’s object is not to preclude unmarried couples from adopting a child. “In fact, all the other criteria ensure the child’s best interests. The Union of India has not proved that precluding unmarried couples from adopting a child (even though the same people are eligible to adopt in their individual capacity) is in the child’s best interests,” the CJI wrote.
The minority view added that the exclusion of same-sex couples from adopting has the effect of “reinforcing the disadvantage already faced by the queer community. Law cannot make an assumption on good and bad parenting based on the sexuality of individuals”.
MAJORITY VIEW: The majority view largely agreed with the discriminatory aspects of preventing queer couples from adopting children. Justice Bhat termed this as having the “most visible” discriminatory impact on queer couples, and in principle agreed that a couple “tied together in marriage are not a ‘morally superior choice’, or per se make better parents”.
Yet, the majority view said that this change cannot be “achieved by the judicial pen”.
“…The fact that Parliament has made the legislative choice of including only ‘married’ couples for joint adoption (i.e.,where two parents are legally responsible), arises from the reality of all other laws wherein protections and entitlements flow from the institution of marriage. To read down ‘marital’ status as proposed may have deleterious impacts that only the legislature and executive could remedy…,” Justice Bhat wrote.
The halfway approach of recognising civil unions for queer couples was debated during the hearing. Before full marriage rights were recognised for same-sex couples by the US Supreme Court, several states had allowed civil unions.
However, the petitioners argued that civil unions are not an equal alternative to the legal and social institution of marriage, and “relegating non-heterosexual relationships to civil unions would send the queer community a message that their relationships were inferior to those of heterosexual couples.
MINORITY VIEW: The CJI located the right to form intimate associations within the fundamental right to freedom of speech and expression. The CJI stated that for this right to have “real meaning”, the state must recognise “a bouquet of entitlements which flow from an abiding relationship of this kind”. The minority view noted Solicitor General Tushar Mehta’s statement that a committee chaired by the Cabinet Secretary would be constituted to set out the rights which would be available to queer couples in unions.
MAJORITY VIEW: Justice Bhat disagreed with the view that the court can prescribe a “choice” of civil unions to queer couples. The majority opinion said that the state should facilitate this choice for those who wish to exercise it, is an outcome that the community may agree upon.
