SC refuses to grant legal recognition for same-sex marriage; Over to Centre

Digital Desk: A five-judge constitutional panel headed by Chief Justice of India DY Chandrachud ruled against legalising same-sex marriage. The bench, which was made up of Justices PS Narasimha, Sanjay Kishan Kaul, Ravindra Bhat, Hima Kohli, and others, urged the federal government to protect the rights of the LGBTQ community.

There is no unqualified right for same-sex couples to get married, the constitutional bench ruled unanimously. The other three judges disagreed with Justices DY Chandrachud and SK Kaul's decision that same-sex couples can adopt children.

All of the judges on the bench ordered the government to form a committee to look into the rights and privileges of people who are in LGBT unions without having their union recognised as a "marriage" in legal terms. The centre had previously told the court that it would set up a committee under the direction of a cabinet secretary to deal with the problem.

Chief Justice of India (CJI) Chandrachud, Justice Kaul, Justice Bhat, and Justice Narasimha delivered the rulings.

The freedom to form a union cannot be restricted on the basis of sexual orientation, Justice Chandrachud stated in his ruling. Additionally, he stated that “failure of State to recognise the bouquet of rights flowing from a queer relationship amounts to discrimination.”

The Special Marriage Act's (SMA) provisions cannot be overturned, the Supreme Court said, and the Chief Justice of India left the decision on the issue to the Parliament.

"Due to institutional limitations, the Special Marriage Act cannot be overturned or amended by the court. The court cannot insert language into related laws like the Succession Act since doing so would be considered legislation, the Chief Justice stated.

The Special Marriage Act, according to Justice Kaul, violates Article 14 of the Constitution, and he added that "there are interpretative limitations in including homosexual unions in it." He stated, "As rightly pointed by Solicitor General, tinkering with Special Marriage Act can have a cascading effect".

However, the Chief Justice noted out that it is "incorrect to state that marriage is a static and unchanging institution," adding that "reforms in marriage have been brought about by Acts of the legislature."

Nevertheless, CJI stated that "it is up to the Parliament to determine whether a change in the regime of the Special Marriage Act is necessary." He cautioned that the court must use caution to avoid interfering with legislative matters.

According to CJI, the right of LGBTQ people to form unions is "protected by the Constitution. To deny their rights is to deny their basic rights. Sexual orientation cannot be a factor in determining one's ability to form unions."

Civil unions can only be recognised by laws, Justice Bhat continued in his majority opinion. The state cannot be forced to establish a legal framework by the court.

"Recognition for civil union cannot exist in the absence of a legislation. Creation of an institution depends on the State action which is sought to be compelled through the agency of the Court," Justice Bhat observed.

The legal recognition of civil unions for non-heterosexual couples, according to Justice Kaul, would be a step towards marital equality.

The CJI observed that “queerness is not urban or elite”. He said, “Homosexuality or queerness is not an urban concept or restricted to the upper classes of society. It is not an English-speaking man with a white-collar man who can claim to be queer but equally a woman working in an agricultural job in a village.”

Queerness is "neither urban nor elitist," Justice Bhat agreed.

During the debate, the central government said that those who sought it only represented "urban elitist views for the purpose of social acceptance."

In order to prevent discrimination against queer people, the Supreme Court issued orders to the federal, state, and union territory governments. Additionally, the highest court requested that the State raise awareness of the fact that this is not a mental condition. The establishment of "garima grihas," or safe houses for LGBTQ people, was also requested by the government.

The police must make sure that no LGBT person is harassed to find out their gender identification, according to the court, and they cannot be made to return to their natal families.

The Special Marriage Act of 1954, the Hindu Marriage Act of 1955, and the Foreign Marriage Act of 1969 were all challenged by 20 petitions filed by various same-sex couples, LGBTQ+ activists, and transgender people, seeking recognition of non-heterosexual marriages. The five-judge bench made its decision on the case after hearing the petitions.