New Delhi, 17-10-2023 : A five-judge bench of the Supreme Court has declined to provide legal recognition to same-sex marriages, reinforcing the stance that the matter of such unions should be addressed by Parliament. In this pivotal decision, the Chief Justice of India, who presides over the constitutional bench, underscored the importance of ensuring that the LGBTQ+ community is shielded from discrimination, emphasizing that queerness is a natural phenomenon with historical roots, transcending urban or elitist distinctions.
Justice Kaul concurred with the Chief Justice on the need to confer specific rights upon queer couples, emphasizing that both non-heterosexual and heterosexual unions are two sides of the same coin. He asserted that legal recognition of non-heterosexual unions represents a crucial step toward achieving marriage equality.
Justice Bhat, while delivering the operative part of his verdict, expressed agreement with some aspects of the Chief Justice’s views but also highlighted points of divergence. He emphasized that the decision on the issue at hand ultimately rests with Parliament, emphasizing that the judiciary’s role is to interpret and enforce the law, not create it.
Justice Chandrachud played a pivotal role in the verdict by recording the Solicitor General’s statement that the Centre would establish a committee to deliberate on the rights and entitlements of individuals in queer unions. He further directed the central government, states, and Union Territories to promote awareness of queer rights and prevent intersex children from undergoing sex-change operations at an age when they may not fully comprehend the consequences.
The Chief Justice issued directives to law enforcement, stating that a preliminary inquiry must be conducted before filing an FIR against a queer couple for their relationship. He also emphasized that queerness is not confined to urban settings or restricted to certain social classes, underlining that it exists irrespective of caste or class.
Justice Chandrachud posited that it would be inaccurate to depict marriage as an unchanging institution, highlighting that the ability to choose a life partner is intrinsic to the right to life and liberty as enshrined in Article 21 of the Constitution. Recognizing such associations is essential, the Chief Justice noted, as failure to do so would constitute discrimination.
The verdict emphasized that all individuals, including those who identify as queer, have the right to determine the moral quality of their lives and that equality mandates that queer individuals should not face discrimination. It challenged the notion that only heterosexual couples can be good parents, asserting that such an assumption amounts to discrimination against queer couples.
This decision comes after a 10-day-long hearing that concluded on May 11, during which the Centre expressed reservations about the judiciary making a constitutional declaration on the issue of same-sex marriage due to unforeseeable consequences. The Supreme Court had made it clear during arguments that it would not delve into personal laws governing marriages and emphasized that the definitions of “man” and “woman” should not be based solely on biological characteristics, as stated in the Special Marriage Act.
Some petitioners had urged the apex court to leverage its moral authority to foster societal acceptance of same-sex unions, thereby allowing LGBTQIA++ individuals to lead dignified lives, a term encompassing lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual, and ally persons.
On May 3, the Centre had informed the court of its intention to establish a committee to address the administrative concerns of same-sex couples, avoiding the question of legalizing their marriages. On April 27, the court had inquired about extending social welfare benefits to same-sex couples, such as joint bank accounts and nominations in provident funds, without legalizing their marriages.