A five-judge Constitution Bench of the Supreme Court headed by Chief Justice of India (CJI) D Y Chandrachud on October 17 announced a 3:2 verdict on petitions seeking the rights for members of the LGBTQ community to marry and choose family.
- The apex court, in the Supriyo and anr v. Union of India case, declined to legalise same-sex marriage, placing it upon the Parliament and State governments to decide if non-heterosexual unions can be legally recognised.
Supreme Court’s majority view
- The fundamental right to marry: The Supreme Court held that it is not a fundamental right. The fundamental importance of marriage remains that it is based on personal preference and confers social status. Importance of something to an individual does not per se justify considering it a fundamental right, even if that preference enjoys popular acceptance or support.
- Interpretation of Special Marriage Act (SMA): The court could not interpret the SMA to include same-sex couples since the objective of the legislation is not to include same-sex couples within the realm of marriage.
- The provisions and the objects of the SMA clearly point to the circumstance that Parliament intended only one kind of couples, i.e., heterosexual couples belonging to different faiths, to be given the facility of a civil marriage.
- The SMA was enacted in 1954 to enable marriage between inter-faith or inter-caste couples without them giving up their religious identity or resorting to conversion.
- Queer couples’ right to adopt a child: Parliament has made the legislative choice of including only ‘married’ couples for joint adoption (i.e.,where two parents are legally responsible), arises from the reality of all other laws wherein protections and entitlements flow from the institution of marriage. To read down ‘marital’ status as proposed may have deleterious impacts that only the legislature and executive could remedy.
- Civil unions for queer couples: The Supreme Court refused to recognise the right of same-sex couples to have civil unions and left it to the Parliament to decide the issue. A ‘civil union’ refers to the legal status that allows same-sex couples specific rights and responsibilities that are normally conferred upon married couples. Although a civil union resembles a marriage, it does not have the same recognition in personal law as marriage.
- The verdict poses the marriage equality question for the legislature. In the absence of any central law, the judgment holds that State legislatures can enact laws recognising and regulating same-sex marriages; the Constitution under Articles 245 and 246 empowers both the Parliament and the State to enact marriage regulations.
- A high-level Cabinet committee will look into rights that can be conferred on non-heterosexual couples.
