Same-Sex Marriage Verdict: Supreme Court Rejects Right To Marry In 3-2 Ruling

The top court has refused to grant legal recognition to same sex marriages in a 3:2 majority verdict.

It is something that only the legislature is empowered to do and that the court cannot create a framework for such marriages, the Supreme Court said.

The top court has refused to strike down the Special Marriage Act and the Foreign Marriage Act for not giving recognition to queer marriages.

However, the court has accepted the proposition that transgender and intersex couples have a right to marry under the existing personal laws.

On adoption rights, the court has said that unmarried queer couples do not have the right to adopt a child.

Separately, the court has recorded the union government’s statement that it will formulate a committee that will examine the rights and benefits that can be bestowed upon queer couples.

Justice PS Narasimha is in agreement with Justice Bhat.

The right to marry is a statutory right. The state is bound to extend protection to individuals so they can enjoy their rights, Justice Narasimha said in his judgment.

The union government may choose from a number of alternatives to take the next step for the recognition of marriage, says Justice Bhat.

• It could also be that state legislatures might take action rather than the union.

• However, the court shall refrain from doing it. The means to arrive at the destination should be legally sound.

• There is no unqualified right to marry. The court cannot create a framework for such marriages.

A gender neutral interpretation of the Special Marriage Act might work against the historically marginalised class that is 'women', says Justice Bhat.

We agree with CJI's conclusion that transgender people have a right to marry under existing laws, says Justice Bhat.

Civil marriage or recognition of such cannot exist without the existence of a statute, says Justice Bhat.

• The creation of the institution depends on state action.

• While we agree that there is a right to a relationship, we characterise it as falling squarely under Article 21.

• When the law is silent on something, Article 19 does not mandate the state to enact a law for the same.

• There are intractable difficulties to formulate an institution of civil union through a judicial diktat.

Justice Ravindra Bhat said, referring to the right to privacy verdict, that the Puttuswamy judgment had interpreted the right to choose one's partner.

Marriage is an institution that precedes the state. The structure exists regardless of the state.

Justice SK Kaul said he broadly agrees with CJI's judgment.

• Non-heterosexual unions are entitled to protection under the constitution.

• The right to form unions is a right available to all under Articles 19 and 21.

• Non-heterosexual unions and heterosexual unions should be considered two sides of the same coin--both in terms of union and in terms of the rights conferred.

• There is a need for separate anti-discrimination laws.

The right to enter into a union cannot be restricted basis a person's sexual orientation, rules CJI Chandrachud.

Transgender, intersex persons have a right to marry under existing laws, he said.

Queerness is a natural phenomenon known to the country since a long time, says CJI.

• Marriage has attained significance since the state grants benefits to a married couple.

• The constitution does not recognise the right to marry as a fundamental right. However, other aspects associated with marriage relate to various fundamental rights.

CJI Chandrachud directs governments to make sure that the queer community is not discriminated against

• Ensure that treatments offered by doctors to such communities such as hormonal therapy are stopped.

• Government under the mental health act must make guidelines for the mental health of queer community.

• When a police complaint is filed that a couple is queer, they shall conduct a preliminary enquiry.

• If a person is an adult and is in an consensual relationship. The investigation must stand closed.

• No person should be forced to undergo hormonal therapy or sterilisation.

The law cannot make an assumption on good or bad parenting on the basis of parents' sexuality, says CJI.

• Placing a child in a stable family is in the interest of the child.

• Merely because a marriage is regulated by law, it cannot be inferred that law grants stability to the marriage.

• There is no single form of a stable household. There is no merit in the claim that only a heterosexual couple can foster a stable household.

• Since the state has not conferred adoption rights on homosexual couples, this reinforces the disadvantage faced by the queer community.

• An adopted child is the legitimate child of the adopting couple. All the benefits available to an adopted child of a married couple will also be available to an adopted child of an unmarried couple.

CJI Chandrachud said humans are unique in many aspects. "Our ability to feel love for one another makes us human."

• We have an innate need to be seen. As humans we seek companionship. These relationships can take many forms.

• These relationships that nurture us are important.

• The right to choose a partner is grounded in Article 19(1)e.

• Life partners live together, merge their families, support one and another, etc.

• Therefore, right to choose a life partner is also grounded in Article 21--Right to Life

Chief Justice Of India DY Chandrachud, in one of the four judgments in the case, said he has dealt with the issue of judicial review and 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 CJI said. "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."

The CJI, however, said if this court reads words into the Special Marriage Act and other personal laws, it would be equal to redrafting the laws. Whether a change should be brought into the Special Marriage Act, is the domain of the legislature, he said.

The Supreme Court on Tuesday delivered four judgments in the same-sex marriage. Chief Justice Of India DY Chandrachud began delivering his ruling first.

In April 2023, the top court admitted various petitions seeking legal validation of same-sex marriages.

Several prominent lawyers, such as Abhishek Manu Singhvi, Menaka Guruswamy, Arundhati Katju and Mukul Rohatgi, argued in favour of legalisation, whereas Kapil Sibal, Tushar Mehta and Rakesh Dwivedi argued against it.

In a hearing that spanned across 10 days, the court pondered over various issues, both for and against the legal validation of such marriages.

Arguments in favour of legalisation ranged from the right to marry for non-heterosexual couples being implicit in the Constitution of India to pushing the court to bring about an active change in the law, claiming that society cannot keep waiting for the legislature to act upon it.

In contrast, arguments against legalisation focused on the fact that there would be a complete overhaul of various legislation in the country if same-sex marriages were to be legalised, and the power to do so rests exclusively with the parliament.

It was also argued that lawmakers had never envisaged the issue of marriage between the same sexes in the Special Marriages Act, and any judicial attempt to alter the intent of the Act would be rendered nugatory.