Top court says no to same-sex marriage, says it is up to Parliament
Supreme Court of India on Tuesday rejected petitions seeking legalization of same-sex marriage and the majority of Judges in the five-judge bench rejected the demands for adoption of kids by same-sex couples. The four judgments from the five judges bench also refused to change the Special Marriages Act and urged the government to protect the right to life of same-sex couples.
The top court recognized equal rights for queer people and their protection while calling for sensitization of the general public so they don’t face discrimination. The apex court, while passing four separate verdicts, was unanimous in holding that there is “no unqualified right” to marriage, and same-sex couples can’t claim it as a fundamental right under the Constitution.
The bench headed by Chief Justice D Y Chandrachud was critical of the Government of India’s stand that the pleas for legal validation of same-sex marriage was reflective of an urban elitist concept. Queerness is neither an urban nor an elite concept or characteristic, said the apex court, which pronounced the verdicts on 21 petitions seeking legal sanction for same-sex marriages. It, however, differed on certain aspects, especially on the applicability of adoption rules for queer couples.
The five-judge bench comprising the CJI, and Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and P S Narasimha concurred on the main issue that the court can’t accord legal validation to same-sex marriage under the Special Marriage Act and said the task has to be performed by Parliament. However, Justices Bhat, Kohli, and Narasimha, in two separate judgments, differed from the CJI and Justice Kaul on certain legal aspects.
The CJI said adoption regulations are held to be void as they are discriminatory towards queer people and denied them the right to adopt as a couple. Differing from the CJI’s opinion, Justice Bhat held that just because queer couples are not allowed to adopt a child does not mean that the regulations are void.
The LGBTQIA++ persons, who had won a major legal battle in 2018 in the Supreme Court which decriminalized consensual gay sex, had moved the apex court seeking validation of same-sex marriage and consequential reliefs such as rights to adoption, enrolment as parents in schools, opening of bank accounts and availing succession and insurance benefits. However, the top court left all these for Parliament to decide.
The CJI, whose views were supported by Justice Kaul in a separate verdict, recorded the Centre’s submission that it will set up a committee headed by the cabinet secretary to examine the administrative steps that could be taken for addressing “genuine humane concerns” of same-sex couples without going into the issue of legalizing their marriage. The CJI said the court can’t make law but only interpret it and it is for Parliament to change the Special Marriage Act.
Agreeing with the views of the CJI and Justice Kaul, Justice Bhat said the Constitution does not grant a fundamental right to marry. Justice Kaul said he agrees with the CJI on grant of certain rights to queer couples. “Non-heterosexual and heterosexual unions must be seen as both sides of the same coin,” Justice Kaul said, adding legal recognition of non-heterosexual unions is a step towards marriage equality.
Delivering his verdict on the critical issue, the CJI said it is for Parliament to decide whether there is a need for a change in the Special Marriage Act regime. “This court can’t make law. It can only interpret it and give effect to it,” he said. While reading out the operative portion of his verdict, Justice Chandrachud directed the Centre, states, and UTs to take steps to sensitize the public about the rights of queer people and ensure that sex reassignment surgeries are not performed on inter-sex children at an age they cannot fully comprehend the consequences.
The CJI also directed police to conduct a preliminary enquiry before registering an FIR against queer couple over their relationship. He said homosexuality or queerness is not an urban concept or restricted to the upper class.
In his separate verdict, Justice Bhat said queer people have the right to choose partners and the State cannot be obligated to recognize rights flowing from such union. He said queer couples have the right to live together unhindered and undisturbed. Justice Narasimha, in his verdict, said there exists no unqualified right to marry.
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