New Delhi: In a 3:2 majority verdict, the Supreme Court on Tuesday rejected pleas seeking the legalisation of same-sex marriage in India.
A five-judge constitution bench, headed by Chief Justice D Y Chandrachud, held that the law does not recognise the right to marry or have civil union for same-sex couples. The apex court indicated that it is up to the parliament to make law regarding it.
Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and P S Narasimha were the other members of the bench. While Justices Chandrachud and Kaul supported the pleas seeking legalisation of same-sex marriage, the other three judges rejected it. The bench on May 11 reserved its verdict on the pleas after a marathon hearing of 10 days.
The SC bench said that the Parliament should decide whether a change in the regime of the Special Marriage Act is needed to accomodate same-sex marriage. At the same time, it indicated that a failure to do so will result in discrimination against queer couples.
"This court must be careful to not enter into legislative domain. The court cannot strike down the Special Marriage Act due to its limitations. Right to choose one's partner and the right to recognition of that union. A failure to recognize such associations will result in discrimination against queer couples," Chief Justice D Y Chandrachud said.
The Solicitor General said that the Union government will set out a committee to examine the rights which can be conferred on such couples.
The Chief Justice made three conclusions while pronouncing the much awaited judgement on pleas seeking legal validation for same-sex marriage.
1. The court has the power to hear the case.
2. Queer is a natural phenomenon known to India from ages. It is neither urban or elitist.
3. Marriage is not static.
Homosexuality not urban concept
The Chief Justice said that it was incorrect to consider homosexuality an urban concept.
"Homosexuality or queerness is not an urban concept or restricted to the upper classes of the society. It is not an English speaking man with a white collar man who can claim to be queer but equally a woman working in an agricultural job in a village. To imagine that queer people exist only in urban and elite spaces is to erase them," he said.
"Queerness can be regardless of one's caste or class or socio-economic status," D Y Chandrachud said.
"Incorrect to state that marriage is a static and unchanging institution. Reforms in marriage have been brought about by Acts of the legislature."
"The Constitution demands this court to protect the fundamental rights of citizens. Doctrine of separation of powers does not come in the way of this court issuing directions for the protection of fundamental rights," he added.
No discrimination
The Union government, state governments and UTs shall not discriminate against the right of the queer community to enter into union. Police should conduct a preliminary enquiry before registering an FIR against a queer couple over their relationship, the court said.
Adoption
While the Chief Justice stated that the assumption that only heterosexual couples can be good parents is incorrect, Justice Ravindra Bhat disagreed with him.
"Law cannot assume that only heterosexual couples can be good parents. This would amount to discrimination. So the adoption regulations are violative of the constitution for discrimination against queer couples," he said.
Centre's stance
During the arguments, the Centre had told the apex court that any constitutional declaration made by it on the petitions seeking legal validation for same-sex marriage may not be a "correct course of action" as the court will not be able to foresee, envisage, comprehend and deal with its fallout.
The Centre had told the court it had received responses from seven states on the issue of same-sex marriage and the governments of Rajasthan, Andhra Pradesh and Assam had opposed the petitioners' contention seeking legal endorsement for such wedlock.
The apex court had commenced hearing arguments in the matter on April 18.
While hearing the matter on May 11, the bench had observed it cannot give a declaration on same-sex unions on the anticipation as to how Parliament is likely to respond to it.
The bench made the observation after one of the advocates appearing for the petitioners referred to judicial verdicts, including in the instant triple talaq case, and said once the top court gave a declaration to pass a law penalising the practice, it was a matter for "fairly easy legislative consensus".
The bench had made it clear during the arguments that it will not go into personal laws governing marriages while deciding the pleas seeking judicial validation for same-sex marriages and said the very notion of a man and a woman, as referred to in the Special Marriage Act, is not "an absolute based on genitals".
Some of the petitioners had urged the apex court to use its plenary power, "prestige and moral authority" to push the society to acknowledge such a union which would ensure LGBTQIA++ lead a "dignified" life like heterosexuals.
LGBTQIA++ stands for lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual and ally persons.
On May 3, the Centre had told the court it will constitute a committee headed by the cabinet secretary to examine the administrative steps that could be taken for addressing "genuine humane concerns" of same-sex couples without going into the issue of legalising their marriage.
The Centre's submission was pursuant to the apex court asking it on April 27 whether social welfare benefits like opening joint bank accounts, nominating life partner in provident funds, gratuity and pension schemes can be extended to same-sex couples without going into the issue of legal sanction to their marriage.