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Supreme Court refuses to recognise same-sex marriage in 3:2 split verdict

Same-sex marriage: CJI DY Chandrachud, while pronouncing the verdict, said it is incorrect to state that marriage is a static and unchanging institution and the reforms in marriage have been brought about by Acts of the legislature.

Reported By : Gonika Arora Edited By : Raju Kumar
New Delhi
Updated on: October 17, 2023 13:29 IST
Supreme Court of India
Image Source : REPRESENTATIONAL PIC Supreme Court of India

Same-sex marriage: The Supreme Court on Tuesday delivered its much-anticipated judgement on pleas seeking legal validation for same-sex marriage (marriage for LGBTQIA+). The top court’s five-judge Constitution bench directed the Centre and the states to ensure that queer people are not discriminated against on the basis of their sexual orientation. The Supreme Court held that the law does not recognise the right to marry or have a civil union for same-sex couples and it is up to Parliament to make law for it.

This court can't make a law: CJI Chandrachud while reading the verdict

CJI DY Chandrachud said queerness can be regardless of one's caste or class or socio-economic status. This court can't make a law. It can only interpret it and give effect to it, he asserted.

"Whether a change in the regime of the Special Marriage Act is for the Parliament to decide. This court must be careful to not enter into the legislative domain," he said.

"If the Special Marriage Act is struck down, it will take the country to the pre-Indpendence era. If the court takes the second approach and reads words into the SMA, it will be taking up the role of legislature. The court is not equipped to undertake such an exercise of reading meaning into the statute," the CJI said.

Heterosexual relationship is recognised by the law: CJI Chandrachud

"A transgender person is in a heterosexual relationship, such a marriage is recognised by the law. Since a transgender person can be in a heterosexual relationship, a union between a transman and a transwoman or vice versa can be registered under SMA," the CJI read the order.

CJI on rights of queer couple

This court has recognised that queer persons cannot be discriminated against, he said adding the material benefits and services flowing to heterosexual couples and denied to queer couples will be a violation of their Fundamental Rights.

The CJI said the CARA circular not giving adoption rights to queer couples is violative of Article 15 of the Constitution.

Withdrawal of the state from the domestic space leaves the vulnerable party unprotected, he added saying thus all intimate activities within private space cannot be said to be beyond the state's scrutiny.

CJI on heterosexual parents

The law cannot assume that only heterosexual couples can be good parents. This would amount to discrimination. So, the adoption regulations are violative of the constitution for discrimination against queer couples.

CJI on the doctrine of separation of powers

"The doctrine of separation of powers means that each of the three organs of the state perform distinct functions. No branch can function any others' function. The Union of India suggested that this court would violate the doctrine of separation of powers if it determines the list. However, the doctrine of separation of powers does not bar the power of judicial review. The Constitution demands that this court protect the fundamental rights of citizens. The doctrine of separation of powers does not come in the way of this court issuing directions for the protection of fundamental rights," added CJI Chandrachud.

The right to enter into a union includes the right to choose one's partner and the right to recognition of that union, said the CJI. 

 A failure to recognise such associations will result in discrimination against queer couples, he added.

The Solicitor General said that the Union will set out a committee to examine the rights which can be conferred on such couples.

"For the full enjoyment of such relationships, such unions need recognition and there cannot be denial of basic goods and services. The state can indirectly infringe upon freedom if it does not recognize the same. Right to enter into a union is also grounded in Article 19(1)(e)," he elaborated.

Choosing a life partner is an integral part of choosing one's course of life, the CJI said.

"Some may regard this as the most important decision of their life. This right goes to the root of the right to life and liberty under Article 21," he added.

Earlier on May 11, a five-judge constitution bench headed by CJI DY Chandrachud reserved its verdict on the pleas after a marathon hearing of 10 days. 

Non-heterosexual unions are entitled to protection: Justice Kaul

Justice Sanjay Kishan Kaul, a member of the bench, said non-heterosexual unions are entitled to protection under the Constitution.

Justice Kaul bats for legal recognition of non-heterosexual unions 

"I wholeheartedly agree with the Chief Justice of India that there is a need for an anti-discrimination law. My suggestions for anti-discrimination law are as follows- it should address intersectional discrimination. Legal recognition of non-heterosexual unions is a step towards marriage equality. Let us preserve the autonomy so long as it does not impinge on others' rights," said Justice Kaul.

Justice Ravindra Bhat disagrees with CJI

Justice Ravindra Bhat said he does not particularly subscribe to the views of CJI on democratising intimate spaces.

"These outcomes were brought by legislative acts.  The Court's intervention in the decisions cited by petitioners were instances of the Court protecting them from violence, based on the state's duty to protect citizen's rights...other instances like Navtej Johar were about provisions which criminalised acts. While we agree that there is a right to a relationship, we squarely recognise that it falls within Article 21. It includes the right to choose a partner and intimacy. They are like all citizens entitled to enjoy their right without hindrance," he read.

What Centre told SC on the matter?

During the arguments, the Centre had told the apex court that any constitutional declaration made by it on pleas seeking legal validation for same-sex marriage may not be a "correct course of action" as the court will not be able to foresee, envisage, comprehend and deal with its fallout. The Centre had also told the court it had received responses from seven states on the issue of same-sex marriage and the governments of Rajasthan, Andhra Pradesh and Assam had opposed the petitioners' contention seeking legal endorsement for such wedlock. 

Several states oppose legal recognition of same-sex marriages 

The Centre issued a letter to states, asking them to give their opinion on the issues relating to same-sex marriage. Several states including Assam, Andhra Pradesh and Rajasthan have opposed the legal recognition of same-sex marriages in the country whereas Maharashtra, Uttar Pradesh, Manipur and Sikkim sought more time to give their opinion on the same-sex marriage issue.

(With inputs from PTI)

ALSO READ: 'No absolute concept of man or woman based on genitals': SC on same-sex marriages


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