On Tuesday, in a split 3:2 decision the supreme court has dismissed the petition advocating for the legislation of the same-sex marriage. The verdict denied tens of millions of LGBT plus couples the right to marry their partners. The decision was delivered by a five judge Constitution Bench led by Chief Justice DY Chandrachud.
All five judges agreed that there was no inherent right for non-heterosexual couples to marry, with the prevailing conclusion being that the legislative branch should be responsible for deciding on same-sex marriage. Justices Sanjay Kishan Kaul, S Ravindra Bhat, P S Narasimha, and Hima Kohli also served on the Constitution Bench.
Chief Justice DY Chandrachud has appealed the government to establish legal recognition for same-sex couples and has empahzised on the need of prevention of discrimination against them. The Court however has refrained from integrating such couples into the existing legal framework of marriage.
D.Y. Chandrachud stated ” whether marriage equality is legalised is a matter for parliament to determine, and it is not within the court’s purview to make new laws. It is imperative to view non-heterosexual and heterosexual unions as two sides of the same coin,” he said, emphasising that officially recognising non-heterosexual unions is a step towards achieving marriage equality.
Justice Bhat in his judgement expressed both agreements and disagreements from the Chief Justice’s point of view on few matters. While addressing the critical issue, the Chief Justice indicated that the decision on whether or not to amend the framework of the Special Marriage Act should be left to Parliament. “The court’s role is not to enact legislation; rather, it is to interpret and enforce it,” the judge stated.
The court had documented Solicitor General Tushar Mehta’s comments proposing the formation of a committee by the government to determine the rights and entitlements of individuals in homosexual unions, Justice Chandrachud remarked. During his decision, he directed the Central Government, states, and union territories to take steps to raise public awareness about queer rights and to ensure that intersex children are not subjected to sex-change procedures when they are too young to fully understand the consequences.
The police was instructed by the justice to conduct a preliminary investigation before the very First Information Report (FIR) against a couple based on their relationship. He believed that homosexuality or queerness is not exclusive to cities or the upper classes. Limiting queerness to urban environments would be erasure, according to Justice Chandrachud, who emphasised that queerness crosses caste or economic borders.
He rejected the assumption that marriage is a fixed and unchanging institution, claiming that the opportunity to choose a life partner is important to the right to life and liberty under Article 21 of the Constitution.
The right to create a union includes the right to select a partner and have that relationship recognised, according to the Chief Justice, emphasising that refusing to recognise such unions would be discrimination.
“All individuals, including those who are queer, have the right to evaluate the moral quality of their lives,” he declared. The Chief Justice stressed that the court has recognised that equality requires LGBT people to be protected from prejudice.
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 forward by 21 distinct petitions from LGBT+ community members who claimed that the denial of the right to marry violated their constitutional rights, effectively relegating them to the status of “second-class citizens.”
The administration responded by contesting these petitions. Their case, made barely five years after gay sex was decriminalised in India, said that marriage is a sacred institution designated solely for partnerships between a man and a woman. They also said that proponents of marriage equality showed a “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 decision emphasises the need of legal recognition for same-sex couples, it does not change existing marriage legislation to accommodate them. This judgement is both a call to action and acknowledgement of India’s ongoing struggle for LGBTQ+ rights.
The issue was brought before the Supreme Court last year, when 18 same-sex couples filed petitions demanding that same-sex weddings be recognised under the Special Marriage Act, the Foreign Marriage Act, and the Hindu Marriage Act.
Earlier in the hearing, the Supreme Court advised verbally to the petitioners that they consider sitting with the administration in a special committee and devising a solution or a middle route. The Union government has also decided to form a committee led by the Cabinet Secretary to investigate administrative procedures that could be taken to alleviate some of the concerns about fundamental social benefits for same-sex couples