SC refuses to recognize same-sex marriage or civil unions, says it’s for Parliament to decide

New Delhi, October 17: The Supreme Court on Tuesday refused to recognize the right of same-sex couples to enter into marriages or have civil unions and left it to the Parliament to decide the issue.

A five-judge Constitution bench unanimously said it cannot strike down the provisions of the Special Marriage Act (SMA) or read words differently to include non-heterosexual couples within its fold.

A bench of Chief Justice of India DY Chandrachud and Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha refused to tweak the provisions of the Special Marriage Act even as the apex court declared that queer couples have a right to cohabit without any threat of violence, coercion of interference.

There were four judgements separately authored by the CJI and Justices Kaul, Bhat and Narasimha. While CJI and Justice Kaul have the same opinion, Justices Bhat, Narasimha and Kohli have agreed with each other.

The majority judges by 3:2 held that non-heterosexual couples cannot be granted the right to jointly adopt a child. However, CJI and Justice Kaul said that these couples have the right to jointly adopt a child.

Regulation 5(3) of the Adoption Regulations as framed by the Central Adoption Resource Authority (CARA) is violative of Article 15 of the Constitution for discriminating against the queer community, the minority verdict said.

While the minority judges batted for legal recognition of civil unions for non-heterosexuals, the majority held that there cannot be a right to civil unions that can be legally enforceable.
All the five judges agreed that there is no fundamental right to marry.

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The minority judges said that Centre, States, and Union Territories shall not bar queer people from entering into unions to avail of the benefits of the State. The majority verdict said that the entitlement to civil unions can be only through enacted laws and courts cannot enjoin such creation of a regulatory framework.

However, they were unanimous in the creation of a high-powered committee proposed by the Centre in May to examine the concerns of queer couples and moot certain corrective measures.
The three judges said that queer persons are not prohibited from celebrating their love for each other, and they have the right to choose their own partner and they must be protected to enjoy such rights.

“There is no unqualified right to marriage except as it is recognised under the law. Conferring legal status to the civil union can only be through enacted law. These findings will not preclude the right of queer persons to enter into relationships. The challenge to the Special Marriage Act on the grounds of under-classification is not made out. Transsexual persons in homosexual relationships have the right to marry. The state shall ensure queer persons are not harassed,” said Justice Bhat in the verdict authored by him.

The verdict of the apex court came on a batch of petitions seeking the right to marriage for members of the LGBTQIA+ community under the Special Marriage Act, of 1954.

Following a marathon hearing that lasted ten days of arguments from both sides in March and April, the Constitution bench on May 11 reserved its verdict on the pleas.

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The petitioners before the apex court included same-sex couples, rights activists, social workers and organizations.

While pronouncing the judgement, CJI said that homosexuality or queerness is not an urban concept or restricted to the upper classes of 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 queer as existing in urban spaces would be like to erase them and it is to mix urban with elite. Queerness can be regardless of one’s caste or class or socio-economic status,” added CJI.

On adoption of children by queer couples, CJI said it cannot be assumed that unmarried couples are not serious about their relationship.

“There is no material on record to prove that only a married heterosexual couple can provide stability to a child. Thus the regulation (of CARA) is held to be violative of the queer community,” said the CJI.

Thus, CJI passed certain directions saying no person shall be forced to undergo any hormonal therapy, there shall be no harassment to the queer community by summoning them to police station solely to enquire about their sexual identity, Police should not force queer persons to return to their natal family, Police should conduct a preliminary enquiry before registering an FIR against a queer couple over their relationship.

He further added that the Union government and State must ensure there is no discrimination against the queer community, and there is no discrimination in access to goods and services for queer community.

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CJI asked to sensitize the public about queer rights, the government to create a hotline for the queer community, government to create safe houses for queer couples, government to ensure inter-sex children are not forced to undergo operations.

He added that the right to enter into a union cannot be restricted on the basis of sexual orientation, transgender persons in heterosexual relationships have the right to marry under the existing laws including personal laws and unmarried couples, including queer couples, can jointly adopt a child.

Whereas Justice Bhat differing in his opinion from the CJI said that the Court can’t put the State under any obligation when there is no constitutional right to marry or legal recognition of unions among non-heterosexual couples.

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