Why the Supreme Court did not legalise same-sex marriage in India: The big takeaways

For many, today (17 October) was to be a historic day. Members of the LGBTQ+ community and their allies awaited the Supreme Court’s verdict on the matter of same-sex marriages, hoping that the apex court would recognise this right and reverse years of what they deemed ‘discrimination’. However, the five-judge Constitution bench, comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, PS Narasimha and Hima Kohli, refused to grant legal recognition to same-sex marriages, with the Chief Justice saying the court can’t make law but only interpret it and it is for Parliament to change the Special Marriage Act. As people decode and debate the verdict, we bring you the biggest takeaways from the verdict and what it means for the LGBTQ+ community in India. No fundamental right to marry All five justices hearing the matter concurred that there was no fundamental right for non-heterosexual couples to marry. Justice S Ravindra Bhat in his judgment 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 Narasimha too agreed with his colleague on the matter, saying: “There is no unqualified right to marry. Right to marriage is a statutory right or flowing from a custom. Constitutional challenge to the Special Marriage Act and Foreign Marriage Act must fail for the reasons given by Justice Bhat.” [caption id=“attachment_13260752” align=“alignnone” width=“640”] A member of the LGBTQ+ community reacts after the Supreme Court did not legalise same-sex marriages in India. Reuters[/caption] No adoption rights for gay couples In their petition for recognising same-sex marriages, the petitioners had raised the issue of their right to adopt. Hence, this became a major aspect of the justices’ judgment. The judges did not hold a consensus on the matter, with a 3:2 majority holding that gay and unmarried couples couldn’t adopt. Earlier, reading his judgment, Chief Justice of India DY Chandrachud said that unmarried couples, including gay, could jointly adopt a child. He said that the law cannot assume that only heterosexual couples can be good parents and that doing so would amount to discrimination. **Also read: Same-sex marriage verdict: Can unmarried partners, gay couples now adopt in India?** He said that the Juvenile Justice Act doesn’t preclude unmarried couples from adopting and hence, “Central Adoption Resource Authority (the ruling body on adoption) has exceeded its authority in barring unmarried couples”. He further stated: “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.” However, the CJI’s views were not held by the other judges. Justice Bhat disagreed with the CJI’s opinion of allowing non-heterosexual couples to jointly adopt. This view was also held by Justices Hima Kohli and PS Narasimha. Justice Bhat argued that unmarried gay couples can be as good at parenting as heterosexual couples, but there are certain concerns that need to be addressed. “We voice certain concerns. This is not to say that unmarried or non-heterosexual couples can’t be good parents… given the objective of section 57, the State as parens patriae has to explore all areas and to ensure all benefits reach the children at large in need of stable homes,” Justice Bhat said. [caption id=“attachment_13260762” align=“alignnone” width=“640”] A LGBTQ community supporter displays a tattoo on his hand which reads “Born this way” at the Supreme Court in New Delhi, India. AP[/caption] No tweaking Special Marriage Act While reading out their verdict on the matter of same-sex marriage, the five justices agreed that it was not possible to tweak the Special Marriage Act, 1954 by using gender neutral language to allow same-sex marriage. This came after petitioners had urged the apex court to interpret the word marriage as between “spouses” instead of man and woman. CJI Chandrachud said striking down the Special Marriage Act provisions would jeopardise the legal framework for interfaith and inter-caste couples. He added that interpreting the Act in a gender neutral way would amount to “judicial lawmaking”, which would violate the doctrine of separation of powers. Queerness is neither urban nor elite concept While the justices have differing opinions on issues like adoption, there was consensus on one matter. Chief Justice of India, DY Chandrachud, in his reading said: “Queerness is neither urban nor elite”. “In the limited exploration of the literature on the subject… it makes it clear homosexuality is not a novel subject. People may be queer regardless whether they are from villages or cities… not only an English speaking man can lay claim to being queer… It is also a woman working at a farm in a rural area,” said the chief justice.

Justice Ravindra Bhat also agreed with CJI Chandrachud. He asserted that queerness is not urban or elite. These remarks came in response to the Centre’s argument that it had made earlier about the matter being elitist and urban-centric. The Centre had then argued that petitions seeking legal validation of same-sex marriage reflect an “urban elitist” view. Directives to Centre and states While the justices have thrown the ball in Parliament’s court again on the matter of same-sex marriages, they directed the Centre to constitute a committee to examine the rights and entitlements of persons in queer union, without legal recognition of their relationship as a “marriage”. In his minority judgment, CJI Chandrachud issued a slew of directions to the Centre, states and the police forces to protect the gay community. He said that administrations should take steps to ensure that the gay community is not discriminated again. Moreover, there is no discrimination in providing services and goods to members of this community. He further added that the public should be sensitised about gay rights; a hotline should be created and safe houses or ‘garima grih’ should be built for them. He asked that there are measures taken to ensure that inter-sex children are not forced to undergo operations and no person should be forced to undergo any hormonal therapy. He also asked that the police should not harass queer people or forced them to return to their natal families. With inputs from agencies