Supreme Court same sex marriage verdict: Two legal scholars argue that the judgment represents a clear setback for the LGBTQ+ community. This is why.
In November 2022, two same-sex couples moved the Supreme Court, arguing that their inability to marry under Indian family law amounted to a violation of their fundamental rights to equality, life and liberty, dignity, free speech and expression, etc. After a hearing that lasted 10 days, the court reserved its judgment in May 2023 — and delivered its final verdict on October 17.
This is what the five-judge Bench — with Justices S Ravindra Bhat, Hima Kohli, and P S Narasimha in the majority and Chief Justice of India D Y Chandrachud and Justice Sanjay Kishan Kaul in the minority — said on some key questions in their four separate opinions.
Is the right to marry a fundamental right?
The key issue before the court was simple: is there a right to marry under the Indian Constitution, and if there is, is the prevention of same-sex/ queer couples from being able to enjoy this right discriminatory?
Marriage, according to the court, is an institution set up under law — and same-sex couples do not have a right to participate in it unless the law permits them to do so. The fact that it does not permit them at this moment, according to the court, is not unconstitutional.
The Special Marriage Act, 1954 — a legislation that was enacted to enable inter-faith marriages, and the challenge against which formed the foundation of the hearings — was upheld in its current form, i.e., permitting marriages only between a ‘man’ and a ‘woman’.
Ultimately, the court held that there is no fundamental right to marry, although the minority observed that the right to marry interfaces with other fundamental rights, including the right to freedom of expression, freedom of movement, and a life of dignity and autonomy.
If not marriage, do queer couples have the right to enter into a ‘civil union’ — a marriage-like setup where the couple enjoys a catena of legal rights and protections?
Again, the majority answered in the negative. Accepting the arguments made by the Solicitor General, the court found that only an elected legislature is competent to make such interventions. This is because granting same-sex couples the right to marry or enter into a union will involve changes to a vast range of “legislative architectures” and policies.
When two persons enter into a marriage or a civil union, a host of tangible and intangible benefits are made available to them in areas such as insurance, banking, adoption, succession, pension, healthcare, etc. Given the complexity involved in aligning these frameworks (which are wholly based on heterosexual unions) with the right of queer persons to marry, the court found that only an elected legislature with the ability to consult a wide range of stakeholders is competent to intervene.
Justice Narasimha observed that the impact of altering these legal frameworks for queer couples needs to be reviewed by the legislature, as it is “constitutionally suited” to do so.
Can queer couples adopt children?
One of the benefits that flows from marriage — the ability to adopt children — was specifically at issue before the court.
Since a same-sex couple cannot marry under Indian law, it follows that they cannot also adopt children as a couple. However, since the Juvenile Justice Act 2015 permits a single person to adopt a child, same-sex couples were able to adopt children by designating one of the partners as the legal parent.
In 2022, however, the Central Adoption Resource Authority (CARA) put paid to this arrangement by issuing the Adoption Regulations, which require a couple to be in a two-year stable marital relationship to be eligible for adoption. Over and above this, a circular was also issued prohibiting a person from adopting a child if that person was in a live-in relationship. Consequently, queer couples became ineligible to adopt.
As part of their challenge, the petitioners specifically questioned the constitutionality of this arrangement. While the CJI and Justice Kaul struck down the regulations and the circular for violating the right to equality and non-discrimination, the majority, led by Justice Bhat, found that the judiciary was ill-equipped to consider the potential impact of extending the right to jointly adopt children to queer couples.
Ultimately, the court shifted the burden to the executive — and encouraged it to reconsider the laws on adoption in line with the best interests and welfare of children.
Ultimately then, what has changed for queer couples?
The judgment has refused to recognise queer marriages or civil unions. It does not open any doors — only a few windows that were already unlocked.
The court stated that a queer person has the right to choose an emotional, intimate and/ or live-in partner, even if such a relationship does not amount to a marriage or civil union. This is largely a restatement of the law laid down in ‘Navtej Singh Johar’, where the court had decriminalised homosexuality by striking down Section 377 of the Indian Penal Code, as well as ‘Puttaswamy’, where it had recognised a queer person’s sexual autonomy as a facet of their fundamental right to privacy.
Ultimately, the court — both the majority as well as the minority — failed to provide the only relief that the petitioners had asked for: a simple declaration that the institution of marriage should be open to two consenting adults, irrespective of their sex, gender identity, or sexual orientation.
What they got instead was an acknowledgment that family laws disproportionately exclude the queer community — a well-recognised predicament and, in fact, the very reason that had compelled the petitioners to move the court.
Resolving the practical difficulties involved in opening up marriage for all are definitely a legislative function, but a declaration that there exists a right to begin with, is wholly within the judiciary’s remit. On Tuesday, it effectively washed its hands of the issue. Following the Solicitor General’s assurance in the course of hearings that an empowered body would be set up to examine whether and how the existing legal framework could be suitably amended to make the benefits of marriage available to same-sex couples, the court simply directed the Union to set up such a committee under the chairpersonship of the Cabinet Secretary — although it stopped short of setting out the explicit terms of reference.
What lies ahead?
What has become amply clear is that extending marriage to queer couples, or for that matter, enabling them to enter into civil unions, is a far more complex issue than the petitioners may have initially anticipated. New laws will have to be written, and wholesale amendments will have to be made to existing laws. This is a mammoth legal reforms project — one that will not only require careful deliberation, extensive consultation, and incisive drafting, but a radical shift in the outlook towards family law.
The Committee cannot do this alone. It must discuss and deliberate with all relevant stakeholders — the queer community, to understand their problems; representatives of all religious communities, to understand if and how religious personal law can be suitably reconciled with the right of queer persons to marry; the Union and State Governments, to appreciate the practical difficulties involved in this deliberative exercise; as well as family law academics and practitioners, to understand the scope and draft the text of the necessary amendments.
The judgment represents a clear setback for the queer community — one that was largely unanticipated, given the Supreme Court’s recent progressive jurisprudence on queer rights as well as its general openness to take on the role of the legislature in order to develop, guarantee, and enforce fundamental rights. The legislature, the wing of government tasked with translating the will of the people into law, must now take the lead in re-evaluating and improving Indian family law to make it more inclusive, gender-just, and non-discriminatory.
(The authors are with the Vidhi Centre for Legal Policy, which has prepared a Model Code on Indian Family Law for public consultation.)
