Supreme Court Refuses To Recognize Same-Sex Marriages, Asks Union Govt To Form Committee To Determine Rights Of Queer Unions

The Supreme Court on 17.10.2023 refused to grant legal recognition for queer marriages in India saying that it is a matter for the legislature to decide. However, all the judges on the bench agreed that the Union of India, as per its earlier statement, shall constitute a committee to examine the rights and entitlements of persons in queer union, without legal recognition of their relationship as a "marriage".The Court also unanimously held that that queer couples have a right to cohabit without any threat of violence, coercion of interference; but refrained from passing any directions to formally recognize such relationships as marriages.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.There was a degree of disagreement among the judges on certain aspects.CJI DY Chandrachud, in his judgement held that the court that queer couples have a right to seek recognition of their union. CJI held that freedom of queer community to enter into unions is guaranteed under the Constitution.However, the CJI held that the Court cannot 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. 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 and queer 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 S Ravindra Bhat differed from the judgement of the CJI and stated that an entitlement to civil union could only be through enacted law. However, consistent with the statement made to the Court by the Solicitor General, 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...

Supreme Court Refuses To Recognize Same-Sex Marriages, Asks Union Govt To Form Committee To Determine Rights Of Queer Unions

Padmakshi Sharma

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