Same-Sex Marriage: SC Against Legalising Queer Unions, Leaves Task to Parliament
The petitioners argued that marriage brings with it several rights and privileges protected by the law.
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(Photo: The Quint)
Same-Sex Marriage Verdict in Supreme Court Live News Updates: A five-judge bench headed by Chief Justice of India DY Chandrachud ruled against legalising same-sex marriage on Tuesday, 17 October.
Chief Justice of India DY Chandrachud, while reading out the judgment in the batch of petitions, said that the court cannot "strike down the provisions of Special Marriage Act (SMA) or read words differently."
In May 2023, the five-judge constitution bench had reserved its judgment on the case after a 10-day hearing. Others in the bench include Justices Hima Kohli, Sanjay Kishan Kaul, S Ravindra Bhat, and PS Narasimha.
The pleas challenged the provisions of the Special Marriage Act 1954 (SMA), the Hindu Marriage Act 1955, and the Foreign Marriage Act 1969
The petitioners argued that marriage brings with it several rights, privileges, and obligations that are protected by the law
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'The Wait Is Over': Petitioners Ahead of SC Verdict
The Crux: How Did the Hearing Unfold?
During the hearings, the petitioners also said that same-sex couples should be granted the same rights as any heterosexual couple, such as status of "spouse" in financial, banking, and insurance matters, medial and end-of-life decisions, inheritance, succession, and even adoption and surrogacy.
The Centre, however, told the apex court that any constitutional declaration made by it on the petitions may not be the "correct course of action" as the court will not be able to foresee, envisage, comprehend, and deal with its "fallout."
'Small-Town Couples Like Us Exist Across India': Kajal, Bhavna on Fighting for Marriage Equality
'Hope the Verdict Won't Be Disappointing'
Akkai Padmashali, one of the petitioners in the marriage equality case, tells ANI: "...The resistance from the heterosexual people, not all, but almost everyone was objecting to LGBTQIA marriages… Today, the whole country is set to hear the judgment... People's eyes are on the Supreme Court. I identify myself as a woman and if I want to marry a man with his consent, then what is the business of society in this? People have the right to make their own choices when it comes to marriage... I hope the judgement won't be disappointing."
'Judgment Very Important for Queer Community'
Varsha (she/they), who is a member of Nazariya and represents the National Network for LBI Women & Trans Persons, tells The Quint:
"Right now, I am feeling very nervous. I think it's going to be a positive judgment. We have belief in the Supreme Court. This judgment is very important for the queer community. It'll be easier for us to get protection. We have a lot of hope."
'Been Waiting for Judgment for Years': Arundhati Katju
"We have been waiting for the judgment for so many years, we'll give a statement once the verdict comes," says lawyer and LGBTQ rights activist Arundhati Katju.
Snapshots From the Supreme Court
Here are some snapshots from outside the Supreme Court as the LGBTQIA+ community wait anxiously for the verdict.
Avali (they/them), Amrita (she/they), Members of the National Network of LBTI persons, are hopeful, excited, and nervous about the judgment. "It's been a long wait for us. We are hopeful. We have a lot of excitement. It might be a positive judgment, but we don't know to what extent," says Avali.
Media personnel outside the Supreme Court.
CJI Begins Reading Judgment
"There are four judgments in all. There is a degree of agreement and degree of disagreement," says Chief Justice of India (CJI) DY Chandrachud, as he begins reading the verdict.
'Queerness Not an Urban Concept': CJI Chandrachud
"This court cannot make law, it can only interpret it," says CJI Chandrachud.
"Homosexuality or queerness is not an urban concept. Homosexuality or queerness is not an urban concept or restricted to the upper classes of society."
SC Cannot Make But Can Enforce Laws: CJI Chandrachud
"Supreme Court can't make but can enforce laws," says CJI DY Chandrachud
"Rights in the constitution would be a dead letter if the positive obligations are not enforced on the state. In the case of personal relationships characterized by in equality the more powerful person gains primacy," he added.
Special Marriages Act Cannot Be Struck Down: CJI
"If Special Marriage Act is struck down, it will take the country to the pre-Indpendence era. If the Court takes the second approach and reads words into the SMA, it will be taking up the role of the legislature," the CJI said.
"It is for the Parliament to decide whether a change in the regime of the Special Marriage Act is needed," he added.
Queer Couple Must Have Same Rights as Heterosexual Couples: CJI
"Queer couples must also have access to certain rights and benefits like heterosexual couples," the CJI said.
"The state can indirectly infringe upon the freedom if it does not recognise the same. There may be reasonable restrictions on the right. However, the right to intimate association needs to be unrestricted. Tangible benefits of marriage are traceable to contents of the law," he added.
CJI on Same-Sex Marriages & Adoption
"The Central Adoption Resource Authority (CARA) Regulations permit persons to adopt individually and not as a couple. It does not exclude unmarried persons from adopting. The condition is that the couple must be in a stable relationship for two years," the CJI said, observing that it is "wrong to assume that only heterosexual couples will be good parents."
"A queer person can adopt only in an individual capacity. This has the effect of reinforcing the discrimination against queer community," he added. However, Justice Bhat disagreed with this.
SC Directions to the Govts Across India
The Centre, state governments, and union territories are directed to ensure:
The queer community is not discriminated against
There is no discrimination in access to goods and services
Sensitise the public about queer rights
Create a hotline for the queer community
Create safe houses for queer couples
Ensure intersex children are not forced to undergo operations.
Justice Kaul Backs Civil Unions for Non-Heterosexual Couples
Justice SK Kaul also joined CJI in batting for civil unions for non-heterosexual couples. He says that legal recognition of such unions represents a step towards marriage equality.
"Principle of equality demands all people have the right to unions irrespective of sex, gender, or orientation," Justice SK Kaul said.
'Right To Marry Is Not a Fundamental Right': Justice Bhat
"This court has recognised that marriage is a social institution. Marriage as an institution precedes the State. This implies that marriage structure exists regardless of the State. Terms of marriage are independent of the State, and its sources are external," Justice Bhat said.
"There cannot be an unqualified right to marry, which is to be treated as a fundamental right," he added.