Supreme Court Rejects Same-Sex Marriage Legalisation In 3:2 Verdict

In a split 3:2 verdict, the Supreme Court on Tuesday dismissed petitions advocating for the legalisation of same-sex marriage, a blow for the queer community that denies tens of millions of LGBT+ couples the right to marry their partners.

This verdict was delivered by a five-judge Constitution Bench led by Chief Justice DY Chandrachud.

All five judges concurred that there was no inherent right for non-heterosexual couples to wed, with the prevailing opinion being that the responsibility of deciding on same-sex marriage should rest with the legislative branch. The Constitution Bench additionally comprised Justices Sanjay Kishan Kaul, S Ravindra Bhat, P S Narasimha, and Hima Kohli.

In a lengthy judgement, Chief Justice of India D.Y. Chandrachud has called upon the government to establish legal recognition for same-sex couples, emphasizing the need to prevent discrimination against them. However, the Court refrained from integrating such couples into the existing legal framework of marriage.

D.Y. Chandrachud said that whether marriage equality is a legalised is something parliament must decide on, and it is not within the court's remit to create new laws.

"It is imperative to view non-heterosexual and heterosexual unions as two sides of the same coin," he remarked, underscoring that legally acknowledging non-heterosexual unions is a step toward achieving marriage equality.

Justice Bhat, while delivering the operative part of his judgment, expressed both agreement and divergence from the Chief Justice's views on certain matters. Addressing the pivotal issue, the Chief Justice stated that the decision regarding the need for changes in the Special Marriage Act's framework should be left to Parliament. "The court's role is not to enact legislation; rather, it is to interpret and enforce it," he said.

Justice Chandrachud noted that the court had documented Solicitor General Tushar Mehta's statement regarding the formation of a committee by the government to determine the rights and entitlements of individuals in queer unions. During the delivery of his judgment, he directed the Central government, states, and union territories to take measures to raise public awareness about queer rights and ensure that intersex children are not subjected to sex-change procedures at an age when they cannot fully comprehend the consequences.

The Chief Justice instructed the police to conduct a preliminary inquiry before registering a First Information Report (FIR) against a queer couple based on their relationship.

He contended that homosexuality or queerness is not exclusive to urban environments or confined to the upper class. To limit queerness to urban spaces would amount to erasure, and Justice Chandrachud stressed that queerness transcends caste or class boundaries.

He refuted the notion that marriage is an unchanging and static institution, asserting that the ability to select a life partner is fundamental to the right to life and liberty as per Article 21 of the Constitution.

The right to form a union encompasses the right to choose a partner and have that association recognized, the Chief Justice asserted, emphasizing that the failure to recognize such unions would constitute discrimination.

"All individuals, including those who are queer, have the right to evaluate the moral quality of their lives," he declared.

The Chief Justice emphasised that the court has recognized that equality necessitates protection against discrimination for queer individuals.

He also pointed out that the law cannot presuppose that only heterosexual couples can be good parents, as such an assumption would be tantamount to discrimination against queer couples.

This case was brought forth by 21 separate petitions from members of the LGBT+ community, who contended that the denial of the right to marry infringed upon their constitutional rights, effectively relegating them to the status of "second-class citizens."

The government, in response, contested these petitions. Their argument, made just five years after the decriminalisation of gay sex in India, asserted that marriage is a sacred institution reserved exclusively for unions between a man and a woman. They further contended that those advocating for marriage equality represented an "urban elitist view seeking social acceptance."

The case was presided over by the most senior judge, Chief Justice DY Chandrachud, alongside four other Supreme Court justices. The proceedings continued until May 11 of this year, with the Court deliberating its verdict for more than five months thereafter.

While the judgment underscores the importance of granting legal recognition to same-sex couples, it falls short of amending the existing marriage laws to include them. This verdict signifies both a call to action and a recognition of the ongoing struggle for LGBTQ+ rights in India.

Last year, the issue was brought before the highest court in the land, as 18 same-sex couples filed petitions requesting the recognition of same-sex marriages under the Special Marriage Act, the Foreign Marriage Act, and the Hindu Marriage Act.

Earlier, during the hearing, the top court orally suggested that the petitioners should consider the idea of sitting with the government in a special committee and formulating a solution or a middle path. The Union government has also agreed to set up a committee to be headed by the Cabinet Secretary to examine the administrative steps it could take to address some of the concerns in connection with basic social benefits for same-sex couples.