A five-judge Supreme Court Constitution bench has ruled, with a majority verdict, that LGBTQIA+ couples do not possess an unequivocal right to marriage. Instead, they have determined that legal recognition of civil unions can only be achieved through enacted legislation. The bench, composed of Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, delivered this long-awaited verdict, which had been reserved since May 11 of this year.
However, the court made it clear that this ruling does not impede the right of Queer individuals to engage in relationships. Additionally, they asserted that the challenge to the Special Marriage Act (SMA) based on under-classification did not hold.
Justice Ravindra Bhat, Justice Narasimha, and Justice Hima Kohli concurred on these points, while Chief Justice Chandrachud and Justice Sanjay Kishan Kaul had divergent opinions.
At the outset of the judgment, the bench clarified that there were four separate judgments in the case: one by Chief Justice Chandrachud, another by Justice Sanjay Kishan Kaul, a third by Justice Ravindra Bhat, and the last by Justice Narasimha.
In his judgment, Chief Justice Chandrachud directed both the Union government and State governments to ensure there is no discrimination against the Queer community. He emphasized the importance of eliminating discrimination in access to goods and services for the Queer community and the need to raise public awareness about queer rights. The Union and state Governments were instructed to create a hotline for the Queer community to prevent harassment and establish safe houses for queer couples. The government was also tasked with ensuring that intersex children are not compelled to undergo operations.
The Chief Justice further stressed that no one should be forced to undergo hormonal therapy and that the Queer community should not face harassment by being summoned to police stations solely to inquire about their sexual identity. Police should refrain from coercing queer individuals to return to their natal families and should conduct a preliminary inquiry before registering an FIR against a queer couple for their relationship.
Chief Justice Chandrachud highlighted the natural existence of Queer individuals throughout India's history and stated that Queerness is not confined to urban or elitist circles. He emphasized that marriage is not a fixed concept and the Supreme Court cannot strike down the Special Marriage Act or amend it due to institutional limitations. Failure to acknowledge the array of rights stemming from a queer relationship by the State constitutes discrimination.
He made it clear that the right to enter into a union cannot be restricted based on sexual orientation. Transgender individuals in heterosexual relationships have the right to marry under existing laws, including personal laws.
Regarding the adoption of children by queer couples, the Chief Justice stated that unmarried couples, including queer couples, can jointly adopt a child. He directed the Union Government, State Government, and Union Territories not to discriminate against the right of the Queer community to enter into unions.
The Chief Justice also instructed the Union Government to form a committee to determine the rights and entitlements of individuals in queer unions. The committee should consider including queer couples as a family on ration cards, allowing them to nominate joint bank accounts, and securing rights related to pension and gratuity. The report of this committee will be examined at the Union Government level.
In a concurring judgment, Justice Sanjay Kishan Kaul stated that legal recognition of same-sex unions represents a step toward marriage equality, but he emphasized that marriage is not the final destination. He argued for the preservation of autonomy as long as it does not infringe on the rights of others.
Justice Ravindra Bhat and Justice Narasimha dissented with the Chief Justice on various aspects of the judgment. Justice Bhat contended that there is no unqualified right to marry, but there is a right to a relationship, which falls under Article 21 and includes the right to choose a partner and enjoy physical intimacy, privacy, and autonomy. However, Justice Bhat asserted that the court cannot create a legal framework for queer couples; this responsibility falls to the legislature. He argued that while queer individuals have the right to choose their partners, the State is not obligated to recognize the full range of rights stemming from such unions.
Justice Bhat also raised concerns that a gender-neutral interpretation of the Special Marriage Act may not always be equitable and could unintentionally expose women to vulnerabilities. The terminology, such as "wife" and "husband," serves to protect the vulnerable, particularly women facing domestic violence.
In conclusion, Justice Bhat emphasized that there is no absolute right to marriage, and legal recognition of civil unions can only be achieved through enacted law. However, these findings do not negate the right of queer individuals to enter into relationships.
The views of Justice Hima Kohli and Justice Narasimha aligned with those of Justice Ravindra Bhat.
This significant decision arose from a batch of petitions pertaining to marriage equality rights for the LGBTQIA+ community, and it marks a turning point in the legal landscape. The order had been under consideration since May 11, following comprehensive arguments from all parties.
The Constitution bench commenced hearings on April 18, spanning nearly ten days. It was made clear that the issue would be addressed under the provisions of the Special Marriage Act, without delving into personal laws. Despite opposition from the Center, which referred to it as an urban elite concept, the court disagreed. The Center had indicated a willingness to examine issues related to providing certain rights to LGBTQIA+ individuals but opposed legal recognition for same-sex couples.
