LI Network
Published on: October 17, 2023 at 13:05 IST
The Supreme Court of India declined to provide legal recognition for same-sex marriages within the country. Nonetheless, four out of the five judges on the bench reached a consensus to instruct the Union of India to establish a committee tasked with assessing the rights and entitlements of individuals in same-sex unions, albeit without categorizing them as “marriages” under the law.
The five-judge bench, presided over by Chief Justice of India DY Chandrachud and composed of Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, had initiated the hearings for the petitions on April 18, 2023. Following extensive deliberations, the bench reserved its judgment on May 11, 2023.
Today October 17, 2023, the Supreme Court Constitution bench issued four distinct opinion, authored by CJI DY Chandrachud, Justice SK Kaul, Justice Ravindra Bhat, and Justice PS Narasimha.
CJI DY Chandrachud’s held that the court couldn’t alter or reinterpret the provisions of the Special Marriage Act due to “institutional limitations,” as this authority lies with the Parliament and the Legislature. Nevertheless, the CJI took note of the Solicitor General’s statement, representing the Union, affirming that the government would establish a committee to determine the rights and privileges of individuals in same-sex unions.
He also emphasized that transgender individuals in heterosexual relationships possess the right to marry under existing laws, including personal laws, and that unmarried couples, including same-sex couples, can jointly adopt a child.
Additionally, he found Regulation 5(3) of the CARA Regulations, which prohibited unmarried couples from adopting, to be in violation of Article 15 of the Constitution.
Justice SK Kaul concurred with the CJI but asserted that same-sex unions should be recognized as partnerships to provide love and support. However, he acknowledged that the court’s ability to include same-sex unions in the Special Marriage Act was limited, as this was a matter for the Parliament to decide.
Justice SR Bhat dissented from the CJI’s judgment, arguing that the legal recognition of marriage could only be achieved through enacted legislation. Nevertheless, he concurred with the Union’s commitment to form a High Powered Committee to examine the rights and benefits for same-sex couples. He emphasized that the present case was not one where the Supreme Court could mandate the creation of a legal status for same-sex marriage, highlighting that the court’s intervention in the past focused on protecting the rights of queer individuals from violence or criminalization.
Justice Bhat underscored that the right to marry should not be treated as an unqualified fundamental right. He also held that the court couldn’t establish a legal framework for same-sex couples; that responsibility rested with the legislature, which would need to consider various policy aspects. However, he reiterated the right of same-sex couples to maintain relationships.
Justice PS Narasimha, in alignment with Justice Bhat’s perspective, asserted that there was no absolute right to marry and that the right to marriage was either statutory or derived from custom. He also emphasized that recognizing a right to civil union akin to marriage would not be constitutionally permissible. Regarding the CARA regulations and the right of same-sex couples to adopt, he concurred with Justice Bhat’s view that the regulations could not be deemed unconstitutional.
Justice Narasimha further stressed the need for a comprehensive review of legislative schemes that exclude same-sex couples from pension, provident fund, gratuity, insurance, and more, which, he stated, should be undertaken by the legislature.
Justice Hima Kohli’s opinion aligned with Justice Bhat’s perspective.
The batch of cases involved twenty petitions filed by same-sex couples, transgender individuals, and LGBTQIA+ activists. These petitions collectively challenged the provisions of the Special Marriage Act 1954, Hindu Marriage Act 1955, and the Foreign Marriage Act 1969. The focus of the challenge was on the absence of recognition for non-heterosexual marriages within these laws, which was seen as perpetuating discrimination against the LGBTQIA+ community.
The bench, during the hearings, clarified that the challenge would be confined to the Special Marriage Act and would not extend to personal laws. Therefore, the aspect pertaining to the Hindu Marriage Act was not addressed.
Throughout the hearings, the Union Government expressed its willingness to establish a committee to explore the potential granting of legal rights to same-sex and queer couples, even without labeling their relationship as a “marriage.” This offer was made in response to a query from the Court regarding the issuance of executive instructions to ensure that same-sex and queer couples have access to various welfare measures and social security benefits.
Prominent senior advocates, including Mukul Rohatgi, Dr. Abhishek Manu Singhvi, and others, argued for the petitioners, while Solicitor General of India Tushar Mehta represented the Union Government. Senior Advocate Rakesh Dwivedi presented the case for the State of Madhya Pradesh in opposition to the petitions, and Senior Advocates Kapil Sibal and Arvind Datar also argued against the petitions.
Case Title: Supriyo v. Union of India | Writ Petition (Civil) No. 1011 of 2022 + connected matters.
