THE Supreme Court of India declined to legally recognise same-sex marriages, stirring a range of emotions across the nation. Delving deep into the rationale behind the court’s verdict provides a clearer picture of the legal landscape surrounding this momentous decision.
On October 17, the Supreme Court’s Constitution Bench, led by Chief Justice DY Chandrachud, unanimously held that the right to marry is not a fundamental right under the Indian Constitution. The Bench was categorical in its stand that it is up to Parliament and state legislatures to recognise and validate marital unions, particularly same-sex marriages.
Separation of powers
The judgment, by a 3-2 majority, declined to grant constitutional protection to civil unions and adoption rights for queer couples. Central to this stance was the principle of separation of powers. The Bench emphasised that the judiciary’s role is to interpret laws, not to legislate. Directing the State to recognise certain unions could potentially violate this doctrine and might lead to unforeseen consequences.
A spectrum of views
Though united on certain fronts, the Bench showcased an intriguing blend of perspectives:
Queerness: All judges dismissed the notion that queerness is a mere urban, elitist concept. Drawing from ancient Indian texts and traditions, they affirmed the universal nature of non-heterosexual unions, challenging the Union Government’s position.
Special Marriage Act (SMA): The unanimous decision was that the courts cannot amend the SMA to include same-sex marriages. Such an intervention would border on legislative action, a realm outside the judiciary’s purview.
Right to marry: The Bench agreed that marriage is not a fundamental right under the Constitution. Thus, the State isn’t obligated to establish marital institutions in the absence of legislative action. However, disagreements were evident:
Civil union: While CJI Chandrachud and Justice SK Kaul advocated for recognising the right of queer couples to civil unions, Justices SR Bhat, Hima Kohli, and PS Narasimha expressed reservations, highlighting the challenges in crafting a separate framework for nonheterosexual couples.
Adoption Rights: A divide emerged on adoption rights for queer couples. CJI Chandrachud stated, “Law cannot assume that only heterosexual couples can be good parents.” He further observed that the current “adoption regulations are violative of the Constitution for discrimination against queer couples” and specifically highlighted that the CARA circular, which denies adoption rights to queer couples, is “violative of Article 15 of the Constitution”. He further elaborated, “CARA Regulation 5(3) indirectly discriminates against atypical unions.
A queer person can adopt only in an individual capacity. This has the effect of reinforcing the discrimination against the queer community.”
Justice Kaul also echoed the Chief Justice’s sentiments on adoption, emphasising the lack of material evidence suggesting that only heterosexual couples could provide stability to a child.
On the other hand, Justice Bhat, while acknowledging the potential of queer couples as good parents, voiced concerns over the broader implications. He opined that the State has an obligation to ensure benefits reach children in need of stable homes. Justices Kohli and Narasimha also took a contrary stand to CJI Chandrachud, resulting in the 3:2 split.
Reactions to the Supreme Court decision on same-sex marriage have been widespread and varied. Among those voices is Solicitor General Tushar Mehta, who appreciated the Supreme Court’s decision, viewing it as a significant moment in global legal discourse. He acknowledged the verdict’s capacity to harmoniously balance personal freedoms with societal needs and its clarification on the interplay among the pillars of democracy.
The initial euphoria among the petitioners, buoyed by favourable readings from Justices Chandrachud and Kaul, turned to dismay as the majority view crystallised. Their quest for legal recognition of their relationships and the consequent entitlements continues. The Government’s commitment to establishing a committee to address non-heterosexual couples’ concerns offers a glimmer of hope.
The Supreme Court’s verdict reflects the intricate balance between interpreting the Constitution and respecting the doctrine of separation of powers. While the court acknowledged the rights and sentiments of the LGBTQ+ community, it refrained from overstepping its boundaries, leaving the issue for legislative deliberation. As India awaits further developments, this judgment will undoubtedly be a focal point in the discourse surrounding the rights of queer individuals.