On October 17, a constitutional bench of the Supreme Court of India rejected legal recognition for same-sex marriage in a split decision. Ruling on a string of petitions the court stated that petitions asking for recognition within existing family laws require legislative action that is beyond the purview of the judiciary.
The majority decision of the court, split 3:2, also refused to read in right to adoption for LGBT+ couples, and rejected the notion of civil unions or a “civil right to a union” for both heterosexual and non-heterosexual couples.
“The Court in the exercise of the power of judicial review must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain,” the judgment said.
While refusing to strike down the Special Marriage Act (SMA) and Foreign Marriage Act, the verdict added the Court can’t either strike down the constitutional validity of SMA or read words into the SMA because of its institutional limitations.
Nevertheless, the bench of five judges led by Chief Justice of India DY Chandrachud and comprising justices Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli, and P. S. Narasimha stated that the government should constitute a panel to consider granting certain rights and entitlement of persons in queer union.
The judgment offered differing views on various aspects of laws governing marriage and adoption, raised by the petitioners, with the bench presenting four judgements with varying levels of agreement and disagreement.
“The institution of marriage has changed, which characterizes the institution from sati and widow remarriage to interfaith marriage,” said the Chief Justice. “The discussion demonstrates that the institution of marriage is not static.”
Justice Kaul argued that SMA violated Article 14 for being discriminatory as queer unions “are to be recognized as a union to give partnership and love”. He also argued that “the legal recognition of civil unions for non-heterosexual couples represents a step towards marriage equality.”
Similarly, CJI Chandrachud, while holding laws requiring couples to be in a heterosexual marriage to be eligible for adoption as discriminatory, argued that “unmarried heterosexual couples can marry to meet their requirements, but a queer person does not have the right to do so and this exclusion only reinforces the discrimination.”
Both Kaul and the CJI represented the minority opinion on matters of adoption and civil unions for LGBT+ couples, even though they too agreed against recognizing same-sex marriage with the rest of the bench.
The court also ordered the government to establish hotlines, safe houses for those individuals who are vulnerable, address exclusion of same-sex couples from benefits, and to end involuntary medical procedures aimed at LGBT+ couples or transgender and intersex children.
But more significantly, the judges unanimously ruled that transgendered persons in a heterosexual relationship have the right to marry under existing laws, including under different personal regulating marriages among different religious groups.
The Supreme Court’s verdict has however invoked mixed responses with some activists and rights organizations including Amnesty International calling it a historical missed opportunity.
It was also argued that many of the given proposals had been previously issued by the court in verdicts decriminalizing same-sex sexual relationships and the NALSA judgment, which became the basis for the recognition of transgenders in the country.
In 2018, the Supreme Court of India had decriminalized consensual same-sex sexual conduct under the colonial-era penal code in a landmark judgment.
According to Mario da Penha, one of the petitioners who was involved in filing least 21 petitions for legalizing same-sex marriage in the country, the Supreme Court verdict is disappointing and a setback for human rights, but rights groups struggling for the rights of LGBTQ community aren’t losing hope.
“There has been tremendous work that has gone into these petitions, and many hopes and dreams of the queer community attached to them – to lead lives that most other Indians take for granted. The fact that the dream could not come to fruition today is a disappointment for all of us,” Mario stated.
