Supreme Court Rejects Recognition Of Same-Sex Marriage and Civil Unions

In a significant decision, the Supreme Court of India has refused to recognize the right of same-sex couples to marry or enter into civil unions. The Court held that as per the current law, there is no provision for same-sex marriages or civil unions, emphasizing that any changes in this regard should be made by the Indian Parliament.

The Constitution Bench, comprising Chief Justice of India DY Chandrachud and Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, delivered four separate judgments, with the majority opinion presented by Justices Bhat, Kohli, and Narasimha.

All the judges were unanimous in ruling that there is no unqualified right to marriage, and same-sex couples cannot claim marriage as a fundamental right. They also collectively turned down challenges to provisions of the Special Marriage Act.

The majority opinion, rendered by Justice Ravindra Bhat, held the following:

• There is no unqualified right to marriage.

• Entitlement to civil unions can be only through enacted laws, and courts cannot enjoin the creation of a regulatory framework.

• Queer persons are not prohibited from celebrating their love for each other, but they have no right to claim recognition of such union.

• Queer persons have the right to choose their own partner and must be protected to enjoy such rights.

• Same-sex couples do not have the right to adopt children under existing law.

• The central government shall set up a high-powered committee to undertake a study of all relevant factors associated with same-sex marriage.

• Transgender persons have the right to marry.

In a minority opinion, CJI Chandrachud and Justice Kaul contended that same-sex couples have the right to enter into civil unions and can claim related benefits. They also asserted that such couples have the right to adopt children, striking down adoption regulations that prevented this.

The following are the highlights of CJI Chandrachud's minority judgment:

• Queerness is not urban or elite.

• There is no universal concept of marriage. Marriage has attained the status of a legal institution due to regulations.

• The Constitution does not grant a fundamental right to marry, and the institution cannot be elevated to the status of a fundamental right.

• Courts cannot strike down provisions of the Special Marriage Act. It is for Parliament to decide the legal validity of same-sex marriage. Courts must steer clear of policy matters.

• Freedom of the queer community to enter into unions is guaranteed under the Constitution. Denial of their rights is a denial of fundamental rights. The right to enter into unions cannot be based on sexual orientation.

• Transgender persons have the right to marry under existing law.

• Queer couples have the right to jointly adopt a child. Regulation 5(3) of the Adoption Regulations as framed by the Central Adoption Resource Authority (CARA) is violative of Article 15 of the Constitution for discriminating against the queer community.

• Centre, states, and union territories shall not bar queer people from entering into unions to avail benefits of the state.

This verdict leaves the recognition of same-sex marriages and civil unions in the hands of the Indian Parliament, emphasizing the need for legal reforms in India to accommodate the rights and relationships of the LGBTQIA+ community. The decision also raises questions about the protection of LGBTQIA+ rights and the road to legal recognition for same-sex couples in India.

Author: Anushka Taraniya News Writer, MIT ADT University