On October 17, the Supreme Court of India pronounced its judgment on the issue of extension of marital rights to the queer community. A Constitution bench of five-judges headed by the Chief Justice of India D.Y. Chandrachud declined to allow recognition to same-sex marriages in India and left the issue for the Parliament to decide upon.
The bench, also comprising Justices S.K. Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha, had reserved the judgment in the said case on May 11, 2023. The verdict pronouncement lasted for almost two hours and was delivered through four judgments that had “a degree of agreement and a degree of disagreement,” as per CJI Chandrachud. While three of the judges, forming the majority, agreed that the court cannot form an obligation on the state to create a legal status for queer couples, the minority judgments of CJI Chandrachud and Justice Kaul had deemed it necessary to recognise civil unions of queer couples.
- CJI Chandrachud
CJI Chandrachud, who is known for his liberal views on and knowledge of gender, dedicated one section of his judgement to the issue of queerness not being an urban or an elitist concept that is restricted to the upper classes of the society. As stated by him, “Queerness can be regardless of one’s caste or class or socio-economic status.” It is essential to highlight here that the aforementioned remark was a response to the argument raised by the Union of India that the issue of same-sex marriage is an issue of the urban elite.
In his judgement, the CJI dealt with the issue of judicial review and separation of powers. CJI Chandrachud highlighted that one of the major arguments put forth by the Union of India was that the court was violating the doctrine of separation of power by entering this arena and that it should be left to the Parliament to legislate on the issue of same sex marriage. CJI Chandrachud then stated that the institution of marriage has been static and changing, with the move from the practice of Sati to allowing remarriage to prohibition of child marriage, and these reforms have been brought in through act of the legislature. And thus, he held that the intimate activities within the private spaces that individuals occupy cannot be deemed to be out of State’s scrutiny.
CJI Chandrachud also left it to Parliament to decide whether there should be a change in the Section 4 of the Special Marriage Act which the petitioners had alleged to be discriminatory towards and exclusive of same-sex couples. As per Livelaw, CJI stated that “The court is not equipped to undertake such an exercise of reading meaning into the statute. Whether a change in the regime of the Special Marriage Act (SMA) is for the Parliament to decide.”
On the issue of adoption laws being exclusionary towards queer couples, CJI held that the respondents had failed to provide the necessary evidence to show that only married heterosexual couples can make for good parents. With regards to this, CJI Chandrachud held that the Central Adoption Resource Authority Regulation 5(3), which bar unmarried couples from adopting, to be read down as it indirectly discriminated against atypical unions. Notably, as per the laws in place, a queer person can adopt only in an individual capacity. The CJI held the said regulation to have an effect of reinforcing the discrimination against queer community, and stated that “The CARA circular (which excludes queer couples from adoption) is violative of Article 15 of the Constitution.”
Through his judgement, CJI Chandrachud re-iterated the fundamental rights that the Constitution of India that include the right to enter into a union and the right to recognition of that union under Article 19 as well as right to choose one’s partner under Article 21. Through this, CJI Chandrachud held that the fundamental rights of queer couples that already exist cannot be denied and doing so will amount to discrimination.
In conclusion, CJI Chandrachud, however, did not grant any concrete steps to extend the marital rights to the queer community, creating a separate space for them or making any changes to the SMA. Instead, he held that queer unions, along with the material benefits flowing from the same, should be recognised under the existing fundamental rights. He also added that if queer associations are not recognised under Part 3 of the Constitution, it could thwart freedoms and will be discriminatory in nature.
Without providing any set deadline, CJI DY Chandrachud left it to the Union Government that had vehemently opposed the Supreme Court on considering the issue of equitable marital rights to form a committee to decide the rights and entitlements of persons in queer unions. The committee, he said, shall consider including queer couples as family in ration cards, enabling queer couples to name each other as nominees in bank accounts, etc.
Justice S.K. Kaul
Justice Kaul’s judgment was in agreement with the judgment of CJI Chandrachud. In his judgment, Justice Kaul held that constitutional courts have to uphold the rights of individuals through the guidance of constitutional morality and not social morality. And thus, according to him, it was essential that queer unions are recognised as a union of partnership and love. He further added that the path to marriage equality is through legal recognition of non-heterosexual unions.
While pronouncing his judgement, Justice Kaul had stated that “Non-heterosexual unions and heterosexual unions must be seen as both sides of the same coin. This moment is an opportunity to remedy the historical injustice and discrimination and thus governance needed to grant rights to such unions or marriages.”
Justice Kaul too, however, much like CJI Chandrachud, held back from issuing any concrete directions to extend the rights of marriage under the SMA to queer couples. Even after holding the SMA to be violative of Article 14, he left it up to the parliament to read down or change the exclusionary provisions of the said Act keeping in mind the “cascading effect” that it can have.
Justices Ravindra Bhat and Hima Kohli
The judgement pronounced by Justice Bhat had been signed by him and Justice Kohli. Through the judgement, Justice Bhat had disagreed with the judgment of CJI Chandrachud on certain aspects. He had stated “We do not particularly subscribe to the views of CJI on democratising intimate spaces.”
According to Justice Bhat, reforms to the institution of marriage can only be brought through the legislative acts introduced by the state and the interference by the Courts have been limited to protecting the queer individuals from facing violence.
In his judgement, Justice Bhat held it wrong to obligate the state to create a legal status for queer couples by holding the institution of marriage to be separate from the state. Justice Bhat held, “This court has recognised that marriage is a social institution. Marriage as an institution precedes the state. This implies that marriage structure exists regardless of the state. Terms of marriage are independent of the state, and its sources are external.”
Based on the aforementioned rationale, of marriage being a social institution, Justice Bhat stated that while the right to relationship, choice and intimacy fall under the ambit of Article 21, the court cannot obligate changes to a social institution. He further stated that the right of two consenting adults can only be extended to the right to dignity, to live together, be intimate, and be protected from violence. “There are difficulties in creating through a judicial diktat a right to civil union,” Justice Bhat had said.
In conclusion, Justice Bhat held that in addition to the court not being able to create a legislation for recognition of queer couples, the court also refused to obligate the state to recognise queer unions and the bouquet of rights flowing from it.
With regards to the SMA, Justice Bhat stated that the said Act cannot be read in a gender-neutral manner and had been passed solely with the purpose of allowing inter-faith and inter-caste heterosexual relationships. Notably, both CJI Chandrachud and Justice Kaul had disagreed with this contention.
In addition to this, Justice Bhat also disagreed with CJI Chandrachud on granting the right of adoption to queer couples. As per Justice Bhat, the said right of adoption could only be enacted through law. In this regard, he said, “the state as ‘parens patriae’ has to explore all areas and to ensure all benefits reach the children at large in need of stable homes”.
- Justice P.S Narsimha
Through his judgment, Justice Narsimha agreed with the judgement of Justice Bhat and Justice Kohli. According to him, the constitutional challenged raised by the petitioners against the SMA and the Foreign Marriage Act fails based upon the reasons provided by Justice Bhat in his judgment. He too concluded the judgment by stating that the extension of marriage rights to queer couples is an activity that needs a deliberate exercise which can only be conducted by the legislature.
Where does this leave us?
With this, the constitutional bench of the Supreme Court unanimously held that no legal recognition will be granted to queer marriages. With a ratio of 3:2, no constitutional or fundamental right of civil unions of queer couples could be granted by the court. Additionally, the majority three judgments also withheld the extension of right to adoption to queer couples. Lastly, the constitutional bench unanimously stated that the issue of recognition of marital rights of queer couples will be examined by the High-Powered committee, to be set by the Union of India.
One step forward, 5 steps back:
Today, the queer community stands at the same juncture that it stood five years ago when the Supreme Court had unanimously read down Section 377 of the Indian Penal Code that had criminalised consensual sex between homosexuals. On that fateful day of 2018, Justice Indu Malhotra had written in her judgement that “History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.”
The four separate judgements pronounced by five judges of India’s Supreme Court today clearly signal disappointment for the queer community. The court not only refused to recognise queer marriages, they did not grant any recognition to civil unions or any incidental rights of queer couples. Through this judgement, by opting for judicial restraint instead of judicial activism, has the Court missed an opportunity to alleviate discrimination that the queer community faces? Arguably, instead of building upon its own precedents in the case of Navtej Singh Johar v. Union of India (2018), today’s verdict has further delayed the accrual of all rights to the queer community holds in India.
The cautious approach adopted by the judiciary has once again prolonged the struggle of the queer community for basic and equal rights.