The Indian top court refused to recognise same-sex marriage within the country by a 3-2 majority and said it is the legislature”s discretion to consider the matter. The court recorded the statement of the central government, produced by Solicitor General Tushar Mehta, to constitute a committee to examine the rights and benefits that can be given to queer couples.

The Supreme Court of India was producing the verdict on a set of petitions demanding the legal rights of same-sex marriages in the country on Tuesday, and the bench consisted of Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha. While the Chief Justice and Justice Kaul supported the matter, the others opposed it.

The case marked a landmark hearing for the Indian nation, as it stands upright to the world as the biggest of democracies and the most populous among all others. The central government, ruled by the Bharatiya Janata Party under the incumbent Prime Minister Narendra Modi, strongly objected to the matter, as the demand destructs the traditional Indian concept of marriage and family, which are defined as consisting of “father, mother, and children”.

The case can be considered as an extension to the 2018 SC judgement scrapping the ban on gay sex. The petitioners argued that same-sex couples should be granted the same rights and status as any heterosexual couple. The demand included matters of marriage, adoption, succession, inheritance, surrogacy, and divorce. The constitution bench began hearing on the matter on April 18, and the hearing went on for nearly 10 days. The five-judge bench reserved the judgement on May 11, over 20 petitions.

During the judgement on Tuesday, Chief Justice DY Chandrachud recognised the fundamental rights of same-sex couples and said that all persons, including queer people, have the right to judge the moral quality of their lives. On considering adoption, he noted that there is no material on record to prove that only a married heterosexual couple can provide stability to a child. He also produced directions for the central and state governments to ensure that the queer people are not denied of any rights the constitution provides them.

Conclusions made by the Chief Justice DY Chandrachud were,

• Queer is a natural phenomenon known to India from ages. It is neither urban or elitist.
• Marriage is not static.
• This Court cannot strike down Special Marriage Act (SMA) or read words into the SMA due to the institutional limitations. The Court cannot read words into allied laws like the Succession Act as it would amount to legislation.
• Failure of State to recognize the bouquet of rights flowing from a queer relationship amounts to discrimination.
• Right to enter into union cannot be restricted on the basis of sexual orientation.
• Transgender persons in heterosexual relationships have the right to marry under the existing laws including personal laws.
• Unmarried couples, including queer couples, can jointly adopt a child.
• The Union Government, State Governments and Union Territories shall not discriminate against the right of the queer community to enter into union.
• We record the statement of the Solicitor General that the Union Government will constitute a committee to decide the rights and entitlements of persons in queer unions. The committee shall consider the following – include queer couples as family in ration cards, enabling queer couples to nominate for joint bank account, rights flowing from pension, gratuity etc.

The Chief Justice directed, no person shall be forced to undergo any hormonal therapy and there shall be no harassment to queer community by summoning them to police station solely to enquire about their sexual identity.

“Queerness is not urban elite”, read Mr Chandrachud mentioning;

• Homosexuality is not restricted to urban places or elite class of people. Queerness can be regardless of one”s caste or class or socio-economic status.
• It is not an English speaking man with a white collar man who can claim to be queer but equally a woman working in an agricultural job in a village.
• Incorrect to state that marriage is a static and unchanging institution. Reforms in marriage have been brought about by Acts of the legislature.
• Withdrawal of the State from the domestic space leaves the vulnerable party unprotected. Thus all intimate activities within private space cannot be said to be beyond State”s scrutiny.
• Subject of marriage is in the Concurrent List.
• If in the present batch of petitions, this Court holds that Sec 4 of Special Marriage Act is unconstitutional because of being under-inclusive, it has to either strike it down or read it down.
• If Special Marriage Act is struck down, it will take the country to pre-Independence era. If the Court takes the second approach and reads words into the SMA, it will be taking up the role of legislature.
• 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 is for the Parliament to decide. This Court must be careful to not enter into legislative domain. It is for the Parliament to decide whether a change in the regime of the Special Marriage Act is needed.
• Relationships takes various forms, they form the fundamental part of the society and humanity.
• 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 recognize such associations will result in discrimination against queer couples. The Solicitor General said that the Union will set out a committee to examine the rights which can be conferred on such couples.
• For the full enjoyment of such relationships, such unions need recognition and there cannot be denial of basic goods and services. The state can indirectly infringe upon freedom if it does not recognize the same. Right to enter into a union is also grounded in Article 19(1)(e).
• Choosing a life partner is an integral part of choosing one”s course of life. Some may regard this as the most important decision of their life. This right goes to the root of the right to life and liberty under Article 21.
• Each individual including queer persons, have the right to judge the moral quality of their lives. The meaning of liberty is the ability to be who one wishes to be.
• Gender of a person is not the same as their sexuality.
• A transgender person is in a heterosexual relationship, such a marriage is recognized by the law. Since a transgender person can be in a heterosexual relationship, a union between a transman and a transwoman or vice versa can be registered under SMA.
• Queer persons cannot be discriminated. Material benefits and services flowing to heterosexual couples and denied to queer couples will be a violation of their fundamental right.
• It cannot be assumed that unmarried couples are not serious about their relationship.

Solicitor General Mr Mehta assured that a committee would be set up with domain experts and will hold wide consultations with the queer community. Justice Kaul wholeheartedly agreed with the Chief Justice that the country needs an anti-discrimination law and suggested that the law should address intersectional discrimination.

Justice Bhat also supported the view that queerness is neither urban nor elitist but withdrew himself from the directions made by the Chief Justice. According to him, the role of legislature is to act as a codifier of customs and, wherever necessary, intervene in furtherance of Article 14 and 15(3) to enact laws.

Justice Hima Kohli and Justice PS Narasimha agreed with Justice Bhat.

• Legal Recognition Of Same-Sex Marriage: India’s Top Court To Deliver Verdict Today

“I would like to see a positive judgement besides inclusion in the Special Marriage Act and adoption rights and the right to form chosen families”, said Amrita, a partner of a petitioner in the case to the news agency ANI just before the verdict came. “With this judgement a number of things will become easier”, she added.

#WATCH | “I would like to see a positive judgement besides inclusion in the Special Marriage Act and adoption rights and the right to form chosen families. With this judgement a number of things will become easier,” says Amrita, partner of a petitioner in the same-sex marriage… pic.twitter.com/dBsG3oJ33s

— ANI (@ANI) October 17, 2023