THE JHARKHAND STORY DESK
New Delhi, Oct. 17: The Supreme Court on Tuesday refused to grant legal recognition for queer marriages in India. However, four out of the five judges on the bench agreed to direct the Union of India to constitute a committee to examine the rights and entitlements of persons in the queer union, without legal recognition of their relationship as a “marriage”, reports LiveLaw.
A five-judge bench, led by Chief Justice of India DY Chandrachud and comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, had started hearing the petitions on April 18, 2023. After rigorous deliberation, the bench reserved its judgment on May 11, 2023. Today, the Supreme Court Constitution bench pronounced four judgements– written by CJI DY Chandrachud, Justice SK Kaul, Justice Ravindra Bhat and Justice PS Narasimha respectively.
CJI DY Chandrachud, in his judgment held that the court could not strike down or read down the provisions of the Special Marriage Act owing to “institutional limitations” as the same would fall within the domain of the Parliament and the Legislature. However, the CJI recorded the statement of the Solicitor General, appearing for the Union, that the Union Government would constitute a committee to decide the rights and entitlements of persons in queer unions. In his judgement, the CJI also held that transgender persons in heterosexual relationships had the right to marry under the existing laws including personal laws. Further, he held that unmarried couples, including queer couples, could jointly adopt a child. In that context, the CJI held that Regulation 5(3) of the CARA Regulations, insofar as it prohibited unmarried couples from adopting, were in violation of Article 15 of the Constitution. Justice SK Kaul concurred with the judgement of the CJI and while stating that queer unions “are to be recognized as a union to give partnership and love“, held that the Special Marriage Act was violative of Article 14 for being discriminatory. However, similar to the view taken by the CJI, Justice Kaul too held that there were limitations on the court in including queer unions in the Special Marriage Act as the same was for the Parliament to decide.
Justice SR Bhat opposed the judgement of the CJI and stated that an entitlement of legal union of marriage could only be through enacted law. However, consistent with the statement made to the Court by the SG, Justice Bhat too concluded that the Union shall set up a High Powered Committee to examine the rights and benefits to queer couples. He stated that the present case was not one where the Supreme Court could require the State to create a legal status. Differentiating the present case from previous cases pertaining to queer rights, he stated that earlier, the Court’s intervention was in instances where the Court protected queer persons from violence or criminalisation based on State’s duty to protect citizen’s right. However, the present matter was not the same. He asserted that marriage was a “social institution” and there could not be an unqualified right to marry which was to be treated as a fundamental right. “If it is agreed that marriage is a social institution, does it follow that any section of society which wishes for the creation of a like institution, can seek relief by court intervention?,” he stated. Justice Bhat further held that the Court could not create a legal framework for queer couples and it was for the legislature to do as there were several aspects pertaining to policy to be taken into consideration. However, he reiterated that queer couples had a right to relationships. In his judgement, Justice Bhat held– “All queer persons have the right to choose their partners. But State cannot be obligated to recognize the bouquet of rights flowing from such a Union. We disagree with the CJI on this aspect.” Further, he stated that a gender neutral interpretation of the Special Marriage Act may not be equitable and could result in women being exposed to vulnerabilities in an unintended manner. While recognising that denial of benefits such as a PF, ESI, pension etc to queer partners may have an adverse and a discriminatory effect, Justice Bhat stated that addressing these concerns may involve a range of policy choices and thus, the High Powered Committee formed by the Union, as submitted by the SG, shall examine these aspects. Justice Bhat agreed with the CJI on the right of transgender persons in heterosexual relationships to marry as per existing laws. However, he disagreed with the CJI on the right of queer couples to adopt and stated that Regulation 5(3) of the CARA regulation could not be held unconstitutional. Justice Hima Kohli concurred with Justice Bhat.
Justice PS Narasimha, agreeing with Justice Bhat stated that there existed no unqualified right to marry and that the right to marriage was a statutory right or flowing from a custom. He further held that it would not be constitutionally permissible to recognize a right to civil union mirroring a marriage. On the aspect of the CARA regulations and the right of queer couples to adopt, he agreed with Justice Bhat’s view and stated that CARA Regulations could not be held as unconstitutional. Justice Narasimha further stated that a review of legislative schemes which excludes queer couples from pension, PF, gratuity, insurance etc needed to be undertaken. He stated–
“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.”
Background
The batch consisted of twenty petitions filed by same-sex couples, transgender individuals, and LGBTQIA+ activists. These petitions collectively challenged the provisions of the Special Marriage Act 1954, Hindu Marriage Act 1955, and the Foreign Marriage Act 1969. Specifically, they contended that these legislations, in their current form, do not recognize non-heterosexual marriages, thus perpetuating discrimination against the LGBTQIA+ community. During the course of the hearings, the bench had clarified that it will confine the challenge only to the Special Marriage Act and will not touch personal laws. Thus, the challenge pertaining to the Hindu Marriage Act was not taken up.
During the course of hearings, the Union Government had expressed willingness to constitute a committee to examine whether certain legal rights could be granted to same-sex and queer couples, without legal recognition of their relationship as a “marriage”. This was in response to a query raised by the Court if certain executive instructions could be issued to ensure that same-sex and queer couples have access to welfare measures and social security – such as permission to open joint bank-accounts, to name partner as nominee in life insurance policies, PF, pension etc.
Senior Advocates Mukul Rohatgi, Dr Abhishek Manu Singhvi, Raju Ramachandran KV Vishwanathan, Dr.Menaka Guruswamy, Jayna Kothari, Saurabh Kirpal, Anand Grover, Geeta Luthra, Advocates Arundhati Katju, Vrinda Grover, Karuna Nundy, Manu Srinath etc., argued for the petitioners. Solicitor General of India Tushar Mehta appeared for the Union Government. Senior Advocate Rakesh Dwivedi argued for the State of Madhya Pradesh in opposition of the petitions. Senior Advocates Kapil Sibal and Arvind Datar also argued opposing the petitions.
