Supreme Court rejects appeal to legalise same-sex marriage, says it’s Parliament’s domain

The bench also comprising Justices S K Kaul, S Ravindra Bhat, Hima Kohli, and P S Narasimha also refused to read into the SMA or the Indian Succession Act or Hindu Succession Act, saying it would mean the court entering into the field of legislature.

The majority ruling by Justices Bhat, Kohli, and Narasimha agreed with the minority that queerness is neither urban nor elite, which was a stand initially adopted by the Centre. They also agreed that transgender persons in heterosexual relations have the right to solemnise marriage under the existing legal framework.

While saying no to legal recognition of same-sex marriages, the majority, however, said they have the right to relationship.

“While we agree that there is a right which he characterised as the right to relationship, which is recognised in Navtej, that queer couples and other relationships of that kind can have union relationship, we characterise it as a right to relationship to avoid confusion. We recognise that it falls squarely within Article 21,” they said.

They were referring to the Navtej Johar v Union of India case when in August 2018, the SC overturned a 2013 judgement that upheld Section 377 of the IPC, under which gay sex was categorised as an “unnatural offence”.

“The right to relationship here includes the right to choose a partner to cohabit, enjoy physical intimacy with them, to live the way they wish to and other rights that flow from the right to privacy, autonomy and dignity. They are like all citizens entitled to live freely and express their choices undisturbed in society. Whenever their right of enjoyment of a relationship is under threat of violence or coercion, the state is bound to take necessary protection that is a natural consequence of this court‘s judgement in Navtej, Puttaswamy, etc,” they added.

The majority said, “What is being asked for by the petitioners is state intervention in enabling marriage between queer or non-heterosexual couples”.

It added, “Civil marriage or recognition of any such a relationship or such status cannot exist in the absence of a statute. The demand hence is not that of a right of access to a publicly created and administered institution. There is a paradox here or a contradiction which runs to the root of the issue and weighs on the mind of this court heavily in that the creation of the institution here depends on state action which is sought to be compelled through the agency of this court”.

Referring to judgements like the ‘Navtej ruling’, the majority said some observations are to be found in these judgements, “which cannot be referenced to hold that a right to marry automatically flows from the manner of the provisions of part three (of the constitution), which the petitioners assert. There cannot be for the above reasons a per se, assertion that there exists an unqualified right to marry which requires treatment as a fundamental freedom”.

All the judges agreed in directing the Centre to set up a committee, as promised by the government during the hearing, to examine the rights and entitlements of persons in queer unions, without legal recognition of their relationship as a marriage.

However, the majority of the judges differed from the minority on adoption rights for same-sex couples. The minority said they should be allowed to adopt jointly but the majority of the judges disagreed saying under the existing structure, it would deprive the child of many legal and social rights.