'Right To Marriage Not Fundamental': Highlights From Marriage Equality Verdict

A five-judge constitutional bench of the Supreme Court of India unanimously ruled against the legalisation of same-sex marriages on Tuesday, 17 October.

While Chief Justice of India DY Chandrachud and Justice SK Kaul were in favour of recognising civil unions of non-heterosexual couples, Justices SR Bhat, Hima Kohli, and PS Narasimha said it would not be "constitutionally permissible to recognise a right to civil union mirroring a marriage."

The top court also said that the right to marry "cannot be considered a fundamental right."

It further ruled that it cannot read queer couples' right to marry into existing laws, leaving the codifying of a new law to the legislature.

CJI Chandrchud and Justice Kaul were also in favour of queer couples' right to adopt, but the other three judges disagreed and upheld the Central Adoption Resource Authority's (CARA) regulations that exclude queer and unmarried couples from adopting.

The apex court agreed to direct the central government to form a committee to examine the rights and entitlements of persons in a queer union – without legally recognising it as a "marriage."

Here are the key highlights from the verdict:

What CJI Chandrachud Said: 'Queerness Not an Urban Concept'

Reading out the verdict, CJI Chandrachud stated that "homosexuality or queerness is not an urban concept or restricted to the upper classes of the society. To imagine that queer people exist only in urban and elite spaces is to erase them."

But he stated that if the Special Marriage Act of 1954 is struck down, "it will take the country to the pre-Indpendence era ... The court is not equipped to undertake such an exercise of reading meaning into the statute."

He added that a change in the regime of the SMA is "for the Parliament to decide," and that the court must be careful not to encroach on the legislative domain.

The CJI, however, acknowledged the right to choose one's partner and the right to recognition of that union.

Speaking of a queer person's right to adopt, he said:

"The Union of India has not proved that precluding unmarried couples from adopting is in the best interests of the child. So, the CARA has exceeded its authority in barring unmarried couples."

"It cannot be assumed that unmarried couples are not serious about their relationship. There is no material on record to prove that only a married, heterosexual couple can provide stability to a child. Law cannot assume that only heterosexual couples can be good parents ... This would amount to discrimination," he said, adding that the CARA circular – which excludes queer couples from adoption – is violative of Article 15 of the Constitution.

What Justice SK Kaul Said: 'Codification of New Law Needed'

Justice SK Kaul agreed with the judgment of the CJI – and said that queer relationships "are to be recognised as a union to give partnership and love."

He said that the SMA is violative of Article 14 of the Indian Constitution, "but there are interpretative limitations in including homosexual unions in it. As rightly pointed by Solicitor General, tinkering with Special Marriage Act can have a cascading effect..."

Justice Kaul agreed that the legislature must be tasked with codifying a new law, and added:

"This moment is an opportunity to remedy the historical injustice and discrimination, and thus, governance is needed to grant rights to such unions or marriages. Legal recognition of non-heterosexual unions is a step towards marriage equality."

What Justice SR Bhat Said: 'Institution of Marriage Precedes State'

While Justice SR Bhat agreed with the CJI in saying that queerness is neither urban nor elitist, he and Justice Hima Kohli did not agree with some of the directions issued by him.

"This court has recognised that marriage is a social institution. Marriage as an institution precedes the state. This implies that a marriage structure exists regardless of the state. The terms of marriage are independent of the state, and its sources are external."

He added that the recognition of a civil union cannot exist in the absence of a legislation.

"While we agree that there is a right to a relationship, we squarely recognise that it falls within Article 21. It includes the right to choose a partner and intimacy. Like all citizens, they [queer couples] are entitled to enjoy their right without hindrance."

But Justice Bhat said that the court cannot create a legal framework for queer couples and it is for the legislature to do so "as there are several aspects to be taken into consideration."

As for adoption rights, he and Justice Hima Kohli disagreed with CJI Chandrachud and Justice Kaul – and upheld the CARA regulations.

What Justice Narasimha Said: 'No Unqualified Right To Marry'

Agreeing with Justice Bhat's judgment, Justice PS Narasimha said that "there is no unqualified right to marry."

"It would not be constitutionally permissible to recognise a right to civil union mirroring a marriage," he said.

He also agreed with Justice Bhat's view on the constitutionality of CARA regulations and the adoption rights of queer persons.

"A review of the impact of the legislative framework in this case requires deliberative exercise, and for the same, the legislature is entrusted to do so constitutionally," he concluded.