Same-sex marriage verdict: What’s next on the road to marriage equality for India?

The Supreme Court has put the ball in Parliament’s court on the subject of same-sex marriages. In a 3:2 verdict, a five-judge Constitution bench ruled that there is no fundamental right to marriage and refused to tweak the Special Marriage Act (SMA) of 1954 to legally recognise queer marriages. The verdict has come as a disappointment for India’s LGBTQ+ community seeking marriage equality. The Tuesday (17 October) ruling of the bench headed by Chief Justice of India (CJI) DY Chandrachud was in connection to 21 petitions filed by same-sex couples and activists that sought an amendment to SMA for the legal recognition of same-sex marriages. Why did the top court leave the matter for Parliament to decide? What next for the queer community in their fight for marriage equality? Let’s understand. Parliament to decide The Supreme Court refused to strike down or read words into the SMA, saying that would amount to entering the field of legislature. The bench, also comprising Justices S K Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, refused to read into the Indian Succession Act or Hindu Succession Act. “If the Special Marriage Act is struck down, it will take the country to pre-Indpendence era. If the court takes the second approach and reads words into the SMA, it will be taking up the role of legislature. The court is not equipped to undertake such an exercise of reading meaning into the statute,” CJI Chandrachud was quoted as saying by NDTV. Although the majority ruling by Justices Bhat, Kohli, and Narasimha denied legal recognition for same-sex marriages, they acknowledged queer persons right to relationship. “The right to relationship here includes the right to choose a partner to cohabit, enjoy physical intimacy with them, to live the way they wish to and other rights that flow from the right to privacy, autonomy and dignity. They are like all citizens entitled to live freely and express their choices undisturbed in society. Whenever their right of enjoyment of a relationship is under threat of violence or coercion, the state is bound to take necessary protection…” the majority ruling said, as per Indian Express.

#SupremeCourt holds that transgender persons in heterosexual relationships have the right to marry under the existing laws or personal laws.

CJI DY Chandrachud & Justice SK Kaul holds that queer couples have the right to adopt. However, Justices S Ravindra Bhat, Hima Kohli…

— Live Law (@LiveLawIndia) October 17, 2023

CJI Chandrachud observed that the right to choose a partner was the “most important life decision”. “This right goes to the root of the right to life and liberty under Article 21 [of Constitution],” he said. While the CJI noted that the institution of marriage does not remain static, the top court cannot make law. “It can only interpret it and give effect to it," he said. ALSO READ: Same-sex marriage verdict: What are Supreme Court’s orders for Centre, states, police? What does it mean for queer community? Now, it depends on the legislature whether it would expand marriage laws to include same-sex marriages. Currently, marriage is governed by different laws in India depending on the religious groups. The top court has taken up the Central government on its offer to set up a high-level Cabinet committee to examine the rights and entitlements of persons in queer unions. The Centre previously proposed to form a panel to address the “human concerns” of same-sex couples – without legally recognising their relationship as a “marriage”. The apex court ruling has directed the Centre, state and Union Territories (UTs) to ensure the queer community does not face discrimination and to protect them from harassment and violence. The verdict means the LGBTQ+ people can engage in relationships without fear of legal fallout. There is also hope that the Centre could provide more rights to same-sex couples. The high-powered committee promised by the government would look into a range of issues, including inheritance, financial and medical rights. To grant queer couples the rights that come with legal recognition of marriage will require amendments to family law, according to Al Jazeera. However, there is disappointment among the queer community, which argues that the top court has not set a timeline for Parliament to act. “Without that mandate, there is no pressure on Parliament to enact any legislation," Mario da Penha, one of the petitioners told Associated Press (AP).  [caption id=“attachment_13262382” align=“alignnone” width=“640”] It depends on Parliament whether it would expand marriage laws to include same-sex marriages. Reuters (Representational Image)[/caption] “I went to the courtroom this morning with a lot of hope, but as I heard the judges read out their orders, I felt huge disappointment. My hopes were dashed,” gay rights activist Sharif Rangnekar told BBC. “The decision to leave it all to a government committee with no timeline for when it is to be set up or when it would provide us with rights leaves us in the hands of lots of bureaucratic uncertainty. It is very worrying.” According to Bloomberg, such panels are also mostly “slow in enacting any change.” Speaking to Al Jazeera, Pyoli Swatija, a lawyer at the Supreme Court, said, “The court gave many directions but ultimately and sadly they won’t have any effect in law … the government of India is not duty bound to follow it.” What is the Centre’s stand? The Bharatiya Janata Party (BJP)-led Centre opposed the petitions seeking the legalisation of same-sex marriages in the apex court. Solicitor General Tushar Mehta, appearing for the Central government, had told the court earlier this year that same-sex marriage was an “urban” and “elitist” concept, which is “far removed from the social ethos of the country.” He had said such marriage is “not comparable to the Indian family unit concept”, comprising a husband, wife and children. In his Tuesday ruling, the CJI noted queerness is not an “urban or elitist concept” or “restricted to the upper classes of the society”. The Centre had also argued that a marriage was between a biological male and a biological woman and queer unions went against religious values, reported AP. The Central government had asserted that only Parliament can decide on granting the legal right. According to the Centre, the governments of Andhra Pradesh, Assam and Rajasthan had opposed the legal recognition to same-sex marriages. Many religious groups also shunned the idea of same-sex unions, claiming it is against Indian values. With inputs from agencies