SC says no to same-sex marriage, passes the baton to Parliament

The Supreme Court of India, on Tuesday, October 17, left it to the Indian Parliament to decide on necessary amendments to the 1954 Special Marriages Act, 1954, to accommodate non-heterosexual (same-sex) marriages in India.

In his judgment, Chief Justice of India, Justice DY Chandrachud, said that the court lacks the authority to either "strike down or read words into the Special Marriage Act" to include people of the same sex under the purview of the 1954 Act.

The bench was responding to a bunch of petitions seeking legal validation of same-sex marriages under the Special Marriages Act.

Chief Justice Chandrachud and Justice Kaul supported the civil union but were in the minority. Justices Bhat, Kohli, and Narasimha, on the other hand, had the majority and decided to defer the matter to the legislature for consideration of such a union.

The bench included CJI DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha.

What did the SC say?

• "All LGBTQIA+ couples, identifying themselves as man and woman, can also marry," said Chief Justice of India Justice DY Chandrachud. "Both heterosexual and homosexual unions shall be seen as two sides of the same coin," noted Justice Kaul.
• On the issue of child adoption, the bench had disagreements.
• While the Top Court did not tweak the Special Marriages Act, it laid out an extensive framework that would pave the way for safeguarding queer lives and rights in India.

Aiming to end discrimination against the LGBTQ+ community, the Supreme Court also directed the Union Government, State Governments, and UTs to ensure:

1. the queer community is not discriminated against,
2. there is no discrimination in access to goods and services,
3. sensitise the public about queer rights,
4. create a hotline for the queer community,
5. create safe houses for queer couples, and,
6. ensure inter-sex children are not forced to undergo operations.

A committee

• The Chief Justice of India (CJI), based on the statement of the Solicitor General of India, noted that the Union Government will establish a committee to determine the rights and entitlements of individuals in queer marriages.
• This committee's mandate will encompass various aspects, such as including queer couples as a family on ration cards, allowing queer couples to nominate for joint bank accounts, and addressing rights related to pension and gratuity, among other considerations.

Government's stand

• During the hearings, the Central Government initially challenged that the courts lacked the authority to create or recognise marriages.
• However, the Supreme Court questioned this objection, emphasising that the nature of the case depended on the arguments presented by the petitioners.
• A discussion about gender fluidity took centre stage during the later hearings.
• Solicitor General of India Tushar Mehta argued that biological gender defines a person's gender and the Government said that adding same marriages to the Special Marriages Act will add to confusion.
• However, Chief Justice Chandrachud challenged this notion, stating that the concepts of a biological man and woman were not absolute and depended on more than just physical characteristics.

The legal journey

• The journey leading to this verdict has not been an easy one and was met by several milestones.
• It began with two gay couples moving to the Supreme Court, seeking recognition of same-sex marriage under the Special Marriage Act.
• The court subsequently issued notices, and more petitions followed.
• The case was referred to a Constitution Bench (the bench that interpreted the Constitution of India), and throughout the hearings, Chief Justice Chandrachud and other judges emphasised the need for inclusivity.

Separation of powers and judicial review

• Chief Justice of India DY Chandrachud, who led the five-judge bench also addressed critical issues surrounding the separation of powers.
• He said that the doctrine of separation of powers does not bar the power of judicial review.
• He added, "The Constitution demands this Court protects the fundamental rights of citizens. The doctrine of separation of powers does not come in the way of this Court issuing directions for the protection of fundamental rights."

Currently, same-sex marriage is legally recognised in around 34 countries around the world.