Supreme Court says no legal sanction to same-sex marriage or civil unions; leaves it to Parliament

The court said the right to marry was not a fundamental right and it could not read into the provision of the Special Marriage Act.

ByParmod Kumar

Published Oct 17, 2023 | 4:54 PMUpdatedOct 17, 2023 | 4:54 PM

Supreme Court hearing on same-sex marriage.

In a setback to the LGBTQIA+ community, the Supreme Court on Tuesday, 17 October, refused to accord legal sanction to same-sex marriages, stating that the right to marry was not a fundamental right and it could not read into the provision of the Special Marriage Act (SMA) as that would amount to judicial legislation.

There were four judgements by the bench — comprising Chief Justice of India (CJI) DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat, and Justice Pamidighantam Sri Narasimha — spelling out their areas of agreement and disagreement.

“There are four judgements… There is a degree of agreement and a degree of disagreement on how far we have to go,” CJI Chandrachud said before commencing the reading of his judgement.

While Justice Kaul broadly agreed with the CJI on the “civil union” of same-sex couples to “remedy the historical injustice and discrimination”, Justice Narasimha agreed with Justice Bhat, which was seconded by Justice Hima Kohli.

The pronouncement of the four judgements lasted for almost two hours.

Related: Syro-Malabar Church opposes legalisation of same-sex marriages

Refusal to interfere in SMA

Holding that the “right to enter into union cannot be restricted on the basis of sexual orientation”, CJI Chandrachud, pronouncing his judgement, said, “The right to enter into union includes the right to choose one’s partner and the right to recognition of that union. A failure to recognise such associations will result in discrimination against queer couples.”

Same-sex marriages India

SC verdict on marriage equality

The CJI further said, “For the full enjoyment of such relationships, such unions need recognition and there cannot be a denial of basic goods and services. The state can indirectly infringe upon freedom if it does not recognise the same.”

He also noted that the “right to enter into a union is also grounded in Article 19(1)(e)” of the Constitution.

Refusing to interfere with the provisions of the Special Marriage Act (SMA), which was projected by the petitioners seeking legal recognition of same-sex marriage, CJI Chandrachud said, “This court cannot strike down the Special Marriage Act or read words into the SMA due to the institutional limitations.”

He added: “The court cannot read words into allied laws like the Succession Act as it would amount to legislation.”

Broadly agreeing with the views of CJI Chandrachud on “civil union”, Justice Kaul said, “Same-sex relationships have been recognised from antiquity, not just for sexual activities but as relationships for emotional fulfilment.”

He added: “It is not res integra (an entire thing) for a Constitutional court to uphold the rights and the court has been guided by the Constitutional morality and not social morality. These unions are to be recognised as a union to give partnership and love.”

Wholeheartedly agreeing with CJI Chandrachud on the need for an anti-discrimination law, Justice Kaul said, “Non-heterosexual unions and heterosexual unions must be seen as both sides of the same coin.”

He added: “This moment is an opportunity to remedy the historical injustice and discrimination and thus governance needed to grant rights to such unions or marriages.

He also said: “Legal recognition of non-heterosexual unions is a step towards marriage equality.”

Same-sex marriage in India: Trans-formations, intimacies, public morality

Batting for the community

Meanwhile, the CJI also noted that the LGBTQIA+ community deserved and thus needed to be treated with dignity.

He directed the police to conduct preliminary enquiries before registering an FIR against queer couples over their relationship.

He also said homosexuality or queerness was not an urban concept or restricted to the upper class.

This appeared to be contrary to what the Union government had said in April in an application to the apex court that sought to dismiss the case.

To imagine queers as existing only in urban spaces would be like erasing them, said CJI Chandrachud, adding queerness could be regardless of one’s caste or class.

On marriage law changes 

same sex marriage verdict

Supreme Court on same-sex marriage. What the judgements said.

Dwelling on the evolution of marriage laws over time, including widow remarriage, the introduction of monogamy, and the minimum age of marriage, Justice Bhat, in a differing judgement, said that marriage was historically an institution based on customs.

He added that the role of the legislature had been to act as a codifier of customs and, wherever necessary, intervene in furtherance of Articles 14 and 15(3) of the Constitution to enact laws.

Not agreeing with CJI Chandrachud on “democratising intimate spaces”, Justice Bhat said that the changes in marriage laws were brought by legislative acts.

Referring to the earlier instances where Section 377 IPC was decriminalised in the course of the adjudication, Justice Bhat said that the court’s intervention in these instances was to protect the LGBTQIA+ community from violence based on the state’s duty to protect citizens’ rights.

Having noted this, Justice Bhat said that this was not a case where the court could require the state to create a legal status.

Stating that the right to marry was a “statutory right”, Justice Narasimha said that it would not be Constitutionally permissible to recognise a right to civil union mirroring a marriage.

Related: Committee to explore steps to address concerns of same-sex couples

Stress on legislation

“Recognition for civil union cannot exist in the absence of legislation. Creation of an institution depends on state action which is sought to be compelled through the agency of the court,” said Justice Bhat.

On the petitioners’ contention on the right to choose their partner, Justice Bhat said, “While we agree that there is a right to relationship, we squarely recognise that it falls within Article 21. It includes the right to choose a partner and intimacy. They are like all citizens entitled to enjoy their right without hindrance.”

Agreeing with CJI Chandrachud that there could not be an unqualified right to marry which was to be treated as a fundamental right, Justice Bhat asked that if it was agreed that marriage was a social institution, did it follow that any section of society, which wished for the creation of a like institution, could seek relief by intervention of the court?

Stating that CJI Chandrachud in his judgement propounded a theory of a unified thread of rights and how lack of recognition violated rights, Justice Bhat said that when the law, however, was silent, Article 19(1)(a) did not compel the state to enact a law to facilitate that expression.

Disagreeing with the CJI on the right of queer couples to adopt and voicing certain concerns, Justice Bhat said, “To create an overarching obligation upon the state is not rooted in any past decision or jurisprudence, but queer people have the right to cohabit without disturbance, and thus to live without threat flows from that.”