New Delhi: The Supreme Court of India delivered a landmark verdict on the legal recognition of same-sex marriages on October 17, 2023. The five-judge constitution bench unanimously ruled against granting legal recognition to same-sex marriages, stating that there was no fundamental right to marry. The decision on legislation regarding same-sex marriage was referred to the Parliament.
Agreements among the judges:
Special Marriage Act not Unconstitutional: The judges unanimously agreed that the Special Marriage Act is not unconstitutional.
Transgender Persons’ Right to Marry: It was agreed that transgender persons in heterosexual relationships have the right to marry under existing laws or personal laws.
No Fundamental Right to Marry: The bench unanimously asserted that the Constitution does not recognize a fundamental right to marry.
Formation of High Powered Committee: The judges agreed that the Union of India should set up a High Powered Committee for a comprehensive examination, taking into account the views of all stakeholders.
Court’s Authority on Same-Sex Marriages: The bench concurred that it is beyond the court’s authority to give legal recognition to same-sex marriages.
Protection against Involuntary Medical Treatment: All judges agreed that queer people should not be subject to involuntary medical treatment.
State’s Role in Enabling Marriage: It was agreed that the state should intervene to enable marriage between queer couples in the absence of a statute.
Protection of LGBTQ+ Rights: The bench unanimously emphasized that the state should ensure that the choice made by queer couples is not interfered with and enable the LGBTQ+ community to exercise their rights.
Disagreements among the judges:
Adoption by Same-Sex Couples: The bench held a 3:2 majority ruling against allowing adoption by same-sex couples. The minority opinion, presented by CJI DY Chandrachud and Justice SK Kaul, argued for the right of queer couples to jointly adopt a child, challenging adoption regulations that exclude queer couples as discriminatory. The majority opinion, presented by Justices S Ravindra Bhat, Hima Kohli, and PS Narasimha, held that non-heterosexual couples cannot be granted the right to jointly adopt a child.
Recognition of Civil Union: The minority opinion favored recognizing the right to form a civil union, while the majority opinion argued that there cannot be a legally enforceable right to a civil union. The CJI stated that the freedom of the queer community to enter into unions is guaranteed under the Constitution.
Recognition of Queer Relationships: The disagreement arose over the duty of the state to recognize entitlements arising from relationships between queer couples. The CJI’s opinion recognized this duty, emphasizing that failure to do so would lead to systemic discrimination against queer couples.
The five-judge bench made this historic decision after hearing 20 petitions filed by various same-sex couples, LGBTQ+ activists, and transgender persons challenging the provisions of marriage acts, seeking recognition of non-heterosexual marriages.