The Supreme Court not only failed to recognise the right of queer Indians to marry. It also did not take any steps toward recognising a civil union/domestic partnership. The only winners yesterday were members of the transgender community.
Researched by: Nirmal Bhansali & Anannya Parekh
First, some background
How we got here: This how the same-sex petitions ended up at the highest court:
- Two same-sex couples filed writ petitions in the Supreme Court on November 14, 2022.
- The first petition was filed by Supriyo Chakraborty and Abhay Dang while the second was filed by Parth Phiroze Merhotra and Uday Raj Anand.
- A week later, on November 25, a bench led by Chief Justice of India DY Chandrachud asked the union government to respond to the petitions.
- At the same time, similar petitions were being heard in courts across the country. In January 2023, these petitions were transferred en masse to the Supreme Court.
- A five-judge constitution bench was set up to consider the pleas—since a decision would have a “huge bearing on society”—and the case will require interpreting the Constitution.
- There are a total of 20 petitions challenging the validity of a slew of marriage laws—including the Special Marriage Act, the Hindu Marriage Act, the Foreign Marriage Act.
Marriage laws in India: We do not have a single law—but a number of different acts that govern marriage. Religious communities have their own personal laws—for example, the Hindu Marriage Act, Muslim Personal Law (Shariat) Act and Indian Christian Marriage Act.
Most of the petitions focus on the Special Marriage Act—which was enacted in 1954. It allows interfaith couples to get married without requiring the religious conversion of one partner. Also: The Foreign Marriage Act—which governs the unions of Indians getting hitched overseas. Its wording does not explicitly prohibit same sex marriages, officials refuse to register them under the law.
Key arguments in favour: centred on these claims:
- Marriage laws use vague language and do not specify gender. Hence, their meaning can be expanded to include same-sex marriages.
- The Supreme Court used Article 21 to decriminalise homosexuality in its 2018 ruling. Petitioners argue that they cannot exercise this right to “dignity and self-fulfilment” without the right to marry.
- Some of the petitions also invoked the rights to equality and privacy.
Also this: Transgender couples challenged the current law that allowed them to get married—but only after they have transitioned.
Key arguments against: centred on these claims:
- Any such move would threaten the “holy union” of marriage. Same-sex marriage is not recognised by any of the personal laws—and any move toward legalisation will “play havoc” with them.
- The Indian family unit “necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two.”
- Marriage laws are beyond the remit of the judiciary—and is under the aegis of the legislature which is in charge of crafting social policy. Any decision to recognise or create “new” rights “can be done only by the competent legislature.”
- The right to marriage is “new” and separate from the constitutional rights to equality, dignity, privacy etc.
- The legislature represents the people’s will—unlike the judiciary—which cannot usurp its role on the basis of "petitions which merely reflect urban elitist views.”
Ok, so what did the Court say?
No constitutional right: The five-judge constitution bench—led by CJI DY Chandrachud—unanimously rejected the plea to legalise same-sex marriages. They said the right to marriage is not a fundamental right:
Justice Bhat said there was no fundamental right to marry. The right was regulated by enacted laws and legally enforceable customs. Framing a new code for legally recognised same-sex unions was the task of the legislature and not the court… “There is no unqualified right to marry except by statutes… the court cannot create a regulatory framework resulting in legal status,” Justices Bhat and Kohli held.
In essence, they agreed with the government that crafting new marriage laws is the remit of the Parliament—not the judiciary.
No tweaking allowed: All five justices also agreed that the Special Marriage Act cannot be changed or reinterpreted to allow same-sex marriages—again, because it would involve stepping on the toes of Parliament:
The petitioners had asked the SC to interpret the word marriage as between “spouses” instead of “man and woman”. Alternatively, the petitioners had asked for striking down provisions of the SMA that are gender-restrictive. CJI Chandrachud said striking down the SMA provisions would jeopardise the legal framework for interfaith and inter-caste couples. He added that interpreting the SMA in a gender neutral way would amount to “judicial lawmaking”, which would violate the doctrine of separation of powers.
Transgender marriages are fine: The Court unanimously held that transgender persons in heterosexual relationships have the right to marry under existing law—including personal laws. And here’s why this is fine but not queer unions:
The gender of a person is not the same as their sexuality. A person is a transgender person by virtue of their gender identity. A transgender person may be heterosexual or homosexual or of any other sexuality. If a transgender person is in a heterosexual relationship and wishes to marry their partner (and if each of them meets the other requirements set out in the applicable law), such a marriage would be recognised by the laws governing marriage.
So the judgement was unanimous?
No, two of the justices—CJI Chandrachud and Justice Sanjay Kishan Kaul—disagreed with the majority opinion on certain key points.
Adoption of children: Chandrachud’s statement upheld the right of same-sex and unmarried couples to jointly adopt a child—and declared that Central Adoption Resource Authority (CARA) guidelines were unconstitutional:
"So CARA has exceeded its authority in barring unmarried couples," Justice Chandrachud said. Stating that differentiating between married couples and unmarried couples has no "reasonable nexus" with the objective of CARA, which is ensuring the best interests of the child, the Chief Justice said, "It cannot be assumed that unmarried couples are not serious about their relationship. There is no material on record to prove that only a married heterosexual couple can provide stability to a child."
OTOH, the majority opinion disagreed that same-sex parents are no different than the heterosexual married kind:
This is not to say that unmarried or non-heterosexual couples can't be good parents....given the objective of section 57, the State as parens patriae (legal protector) has to explore all areas and to ensure all benefits reach the children at large in need of stable homes.
About civil unions: The same two justices also upheld the right to enter into civil unions—which while short of marriage is a hugely important step toward equality. A domestic partnership also does not impede on existing marriage laws. Chandrachud and Kaul argued that not permitting civil unions violates the fundamental rights of queer Indians:
The minority views of Chief Justice D.Y. Chandrachud and Justice Sanjay Kishan Kaul held that constitutional authorities should carve out a regulatory framework to recognise the civil union of adults in a same-sex relationship. The minority views of the two judges held that the right to enter into a union cannot be restricted on the basis of sexual orientation. Discrimination on the basis of sexual orientation is violative of Article 15 of the Constitution, the Chief Justice said.
However, the majority view held that only the legislature has the right to recognise civil unions—as with marriage:
Entitlement to legal recognition of the right to civil union akin to marriage or conferring status upon the parties to the relationship can be only through enacted law. The Court cannot enjoin or direct the creation of such regulatory framework resulting in such legal status.
Justice Bhat disagreed with the CJI’s argument that the right to form a civil union flows from the right to choose a partner, right to life and free expression.
A cold consolation: All justices, however, agreed that same sex couples should be free to enter into relationships—and celebrate them publicly. They also directed the government to ensure that such couples do not face discrimination:
The indirect discriminatory impact on queer couples in terms of entitlement to compensatory benefits or social welfare entitlements, for which marital status is a relevant eligibility criteria, have to be addressed and removed by the government. These measures need to be taken expeditiously because delay will lead to denial to queer persons of enjoyment of such entitlements which are otherwise available to all citizens entitled to such benefits.
The Chief Justice suggested that a government-appointed committee should look into matters such as ration cards, succession, maintenance, opening of a joint bank account; arrangement of last rites of partners etc.
Point to note: Of course, the government isn’t obliged to do anything of the sort. As one lawyer summed it up: “The court gave many directions but ultimately and sadly they won’t have any effect in law … the government of India is not duty bound to follow it.”
The bottomline: All the justices said many nice things about the rights of queer Indians—including Justice Bhat who grandly declared:
There cannot be any doubt that there is a choice to have a life partner. It includes the right to choose a partner and enjoy physical intimacy with them, including the right to privacy, autonomy, etc, and should enjoy this right undisturbed from society and when threatened, State has to protect the same.
But he and other two justices in the majority simply declined to protect those rights. So what kind of right is that?
The Hindu, Indian Express and Al Jazeera lay out the judgement. The Hindu also has more specifically on adoption. You can read the ruling in its entirety here. New York Times and The Telegraph have more on the disappointment of the LGBTQ+ community. Gopal Sankaranarayanan in Indian Express offers a very good big picture on the narrow, technical approach of the Supreme Court—and what this means for the future of queer rights in India. Quartz says the ruling didn’t change anything.