- Written by: Madhu Shah
In September 2018, the Supreme Court of India struck down Section 377 of the Indian Penal Code (IPC), effectively decriminalizing same-sex relationships between consenting adults. However, the verdict on same-sex marriage represents a significant and separate legal battle. However, on 17th October 2023, India’s Supreme Court announced a landmark decision against the legalization of asame – sex marriage that sparked both controversy and disappointment among the queer citizens. The five – judge bench, led by Chief Justice of India DY Chandrachud, deliberated over a ten-day hearing that concluded in May. The bench reserved its verdict on the pleas after the marathon hearing and on October 17 ruled in a 3:2 verdict against civil unions for non – heterosexual couples. The bench said “SC cannot make law, but can only interpret it.”, as they asserted the Parliament’s authority to make any laws.
On November 14th, 2022 two same – sex couples filed a petition in the Supreme Court of India seeking legal recognition of the same – sex marriages in India. The primary argument of the petitioners centred on the legitimacy of the Special Marriage Act, 1954 that recognised marriage between ‘male’ and ‘female’ only. The petitioner’s argued that this definition discriminated against same – sex spouses by denying them marital benefits such as adoption, surrogacy, employment and retirement benefits. The Court was asked to declare Section 4(c) of the Act invalid, so allowing for the formal recognition of same-sex marriages and the attendant legal rights and advantages. These petitions were a crucial step forward in India towards gaining marital equality and equal rights for LGBTQIA+ people.
THE PETITONER’S ARGUMENTS
Senior advocates Neeraj Kishan Kaul, Menaka Guruswamy, Jayna Kothari, Saurabh Kirpal, Arundhati Katju, Karuna Nundy, Priya Puri, Shristi Borthakur and Mukul Rohatgi represented the petitioners and argued passionately for the equality rights of the LGBTQIA+ community. They pushed for same – sex unions to be recognised and urged for the legal status of the same – sex marriages under Special Marriage Act, 1954, ensuring dignity and welfare benefits for the LGBTQ+ couples.
THE GOVERNMENT’S STAND
The government, represented by Solicitor General of India Tushar Mehta, raised preliminary objections to the court’s jurisdiction in the matter. Mehta also emphasized that the process of bringing marriage equality would impact a significant number of laws, making it the exclusive domain of the Parliament to enact such legislation.
The verdict compiles four independent judgements, totalling 366 pages, documenting “ adegree of agreement and a degree of disagreement,” as the Chief Justice of India, DY Chandrachud noted. The dispute concentrated on how far the legislation may go in terms of adoption rights and the freedom to create civil partnerships. The majority opinions were given by Justices S. Ravindra Bhat, Hima Kohli and P.S. Narasimha, and the minority views were held by the Chief Justice and Justice S.K. Kaul.
- The Supreme Court announced a 3:2 verdict against the legalization of the same – sex marriage and instead deferred to the Parliament and state governments to decide whether non – heterosexual marriages were to be legally recognised, acknowledging the ‘law making’ under Parliament’s domain.
- Rights of Transgender People – the majority affirmed that transgenders have the right to marry within the current legal framework. This decision emphasised that gender identity is distinct from sexuality, allowing the transgender people to enter into marriages alongside cisgendered people.
- Marriage Rights for Same – sex Couples – the verdict acknowledges the right of homosexuals to choose their partners and cohabit with one other. It did not however, recognize same – sex marriage as a fundamental right.
- Rights of Adoption – The majority ruling declined to overturn Central Adoption Resource Authority (CARA) restrictions that limit adoption by queer couples. It was argued that these regulations were intended to safeguard children in the event of marriage dissolution and death of a partner. The court emphasised the need for raising awareness about queer partnership.
- Civil Unions – The majority ruling did not recognise civil unions as a legal option for same-sex couples, noting that the government is not obligated to grant the same set of rights to civil unions as it does to marriage.
- Entitlements – The Court acknowledged the Union Government’s commitment to forming a committee to determine the benefits and entitlements for same-sex couples, such as ration cards, joint bank accounts, and pension benefits.
- Natal Family Violence and Protection – The verdict acknowledged the abuse and violence endured by the people of LGBTQIA+ community from their own natal families. The Court affirmed the right to protection against such coercion and directed the police to refrain from forcing queer individuals to return to their families.
- The Court acknowledged the discrimination and harassment faced by queer communities. It dismissed the government’s claim that gay partnerships were “unnatural” and “non-Indian”, affirmed the existence of queer relationships since ancient times and directed the Union Government to establish a high-powered committee to address their concerns.
- The Role of States – The ruling emphasised that, in the absence of federal legislation, state legislatures have the ability to implement laws recognising and regulating same-sex marriage. This lays the duty for action squarely on the shoulders of the states.
The Supreme Court’s verdict refused to legalize same sex marriage in India which undoubtedly became a major setback for LGBTQ+ rights. “Queerness is not solely an urban concept,” Supreme Court stated on the judgement on marriage equality and affirmed some important rights for transgender people and acknowledged the prejudice and harassment experienced by gay groups, it stops short of recognising complete marriage equality. The verdict lays the obligation for enacting laws on Parliament and state governments, emphasising the continued need for campaigning and change to attain equal rights and respect for the LGBTQ+ community. This ruling is a watershed point in India’s changing panorama of LGBTQ+ rights, and the battle for equality continues both inside the legal system and via larger social and political endeavours.