Author Details:-

T. ROSHINI,
III B.A.,LL.B.
Chennai Dr.Ambedkar Government Law College,Pudupakkam.

FACTS OF THE CASE

On November 14th, 2022, two same – sex couples filed legal petitions in the Supreme Court of India. They challenged the constitutionality of the Special Marriage Act, 1954, particularly Section 4(c) of the act which restricts the entire concept of marriage to a mere ‘male’ and ‘female’ couple. The petitioners argued that this provision discriminates against same – sex couples by denying them matrimonial benefits like adoption, surrogacy, and employment benefits. They requested the Court to declare Section 4(c) of the Special Marriage Act, 1954 as unconstitutional. Their plea was clubbed together with other petitions challenging various personal laws, including the Hindu Marriage Act, 1955, and the Foreign Marriage Act, 1969.

On January 6th, 2023, a 3-judge Bench led by the CJI transferred nine pending petitions from the Delhi and Kerala High Court to itself, clubbing them with the main petition. On March 13th, 2023, a 3 – Judge Bench headed by the CJI referred the case to a 5 – judge Constitution Bench. As a result, the Constitution Bench commenced hearings on April 18th, 2023. The hearing for same – sex marriage spanned for the period of 10 days in April – May, the proceedings before a five – judge bench led by CJI DY Chandrachud were live – streamed for the public. On May 11, the five – judge bench head by CJI DY Chandrachud along with the panel of the judges included Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and P S Narasimha, reserved its verdict on the pleas after a marathon hearing of 10 days.

ISSUES RAISED

1. Do the members of the LGBTQIA+ community have a right to marriage?
2. If the members of the LGBTQIA+ community have a right to marry, can the Supreme Court make a declaration to this effect?
3. Does the non – inclusion of LGBTQIA+ marriages under the Special Marriage Act, 1954, amount to discrimination under Article 14 of the India Constitution?

ARGUMENTS

CONTENTIONS OF THE PETITIONERS

• The batch of petitions filed before the Supreme Court consisted of twenty petitions filed by same – sex couples, transgender individuals, and LGBTIA+ activists. These petitions collectively challenged the provisions of the Special Marriage Act, 1954, Hindu Marriage Act, 1955, and the Foreign Marriage Act, 1969. Specifically, they contended that these legislations, in their current form, do not recognize non-heterosexual marriages and in accordance to that, do not legalize them, thus perpetuating discrimination against the LGBTQIA+ community.
• During the course of the hearings, the bench had clarified that it will confine the challenge only to the Special Marriage Act and will not touch the issues pertaining to the personal laws, as the Special Marriage Act is a generic statue and not a specific statute.
• Petitioners through senior advocates including Mukul Rohatgi, Abhishek Manu Singhvi, Raju Ramachandran, Anand Grover, Geeta Luthra, KV Viswanathan, Saurabh Kirpal, and Menaka Guruswamy, have stressed on the equality rights of the LGBTQIA+ community and pushed to acknowledge such a union which would ensure LGBTQIA+ lead a “dignified” life like heterosexuals.
• As the Special Marriage Act (SMA) only recognizes heterosexual individuals. The petitioners are also urging same – sex marriages to be accorded legal recognition under the Special Marriage Act (SMA) to grant dignity to their unions, alongside other welfare benefits.

CONTENTIONS OF THE GOVERNMENT

• On the first day, Solicitor General of India, Tushar Mehta raised preliminary objections to the court’s jurisdiction to hear this case. The court gives its rationale on the subject matters of ‘question of law.’ In accordance to that SG argued that if same – sex marriage is legalized in India, and in the process of bringing marriage equality in the Indian eco system with respect to homosexuality as well, it would impact and affect 160 laws in India, which would further impose an endless series of questions to the validity and constitutionality of such laws. Consequently, he said that the Parliament is the only forum to make such laws.
• The center urged the Apex Court to dismiss the batch of petitions on grounds of maintainability. It argued that marriage as a socio – legal institution, could only be created, recognized, and regulated by the competent legislative body under Article 246 of the Indian Constitution. The Centre contended that courts lacked the authority to create or recognize marriages through judicial interpretation or legislative adjustments.
• The Narendra Modi Government opposed same – sex unions during the hearings, saying that ‘the legislative policy of India has consciously validated a union between a biological man and a biological woman.’
• In May, the government submitted in the court that it would set up a panel headed by the cabinet secretary to examine administrative steps that could be taken to address “genuine concerns” of same – sex couples. This was an initiative at the Centre. Meanwhile, the Centre informed the Supreme Court that it had received responses from seven states on the plea seeking legal recognition for same – sex marriages. While Rajasthan, Assam, and Andhra Pradesh opposed the plea, and the remaining four – Sikkim, Maharashtra, Uttar Pradesh, and Manipur sought more time to respond to the plea and the rest of states formulated no opinion on the subject matter.

REASONING OF THE COURT

OPINION OF THE CJI AND JUSTICE KAUL (MINORITY JUDGEMENT)

The CJI, in his opinion, does not accept the Centre’s stand that the issue of same – sex marriage can only be dealt with the Parliament and not by the SC. He also says in his opinion, “Queerness is neither urban nor elite,” and said that it is incorrect to categorise marriage as a stagnant and unchanging institution. However, he laid emphasis on the fact that the Supreme Court cannot strike down the provisions of the Special Marriage Act as by striking down the Special Marriage Act’s provisions, the benefits of progressive legislation will be lost. CJI also directs the Centre to;

• Ensure queer community is not discriminated against
• Ensure there is no discrimination in access to goods and services.
• Sensitise the public about queer rights
• Create a hotline for the queer community
• Create safe houses or Garima greh for the queer couples
• Ensure inter – sex children are not forced to undergo operations

No person shall be forced to undergo any hormonal therapy CARA, a government agency under the Union Ministry of Women and Child Development, lays down the rules for adopting children in India. The CJI’s opinion also says that Regulation 5(3) of the CARA Regulations, insofar discriminate against atypical, unmarried couples to adopt children, which is further violative of Article 15 of the Constitution. However, CJI’s Judgement was in minority to the ratio of 2:3 in the verdict given by the Supreme Court, as Justice S K Kaul also joined CJI’s opinion for civil unions for non – heterosexual couples. He says that legal recognition of civil unions for non – heterosexual couples represent a step towards marriage equality. However, similar to the view taken by the CJI, Justice Kaul too held that there were limitations on the court in including queer unions in the Special Marriage Act as the same was for the Parliament to decide.

OPINION OF JUSTICE RAVINDRA BHAT, JUSTICE P. S. NARASIMHA AND JUSTICE HIMA KOHLI (MAJORITY JUDGEMENT)

Justice Ravindra Bhat, in his opinion, leaves it to the Parliament to decide on the matter of marriage equality for queer or LGTBQ couples. He says “We do not particularly subscribe to the views of CJI on democratising intimate spaces, these outcomes were brought by legislative acts.” He further said that a citizen cannot seek the construction of a network of roads to enforce the right to travel. He cites this example to argue that the court cannot grant a bouquet of rights without a legislative framework for same – sex marriage to give effect to the rights of queer people. He argued that an entitlement to civil union could only be through enacted law. Differentiating the present case from the previous cases pertaining to queer rights, he stated that earlier, the court’s intervention was in instances where the Court protected queer persons from violence or criminalisation based on the State’s duty to protect citizen’s right. However, the present matter was not the same. Although, he reiterated that queer couples had a right to relationships. He agreed with the CJI on the right of transgender persons in heterosexual relationships to marry as per existing laws. However, he disagreed with the CJI on the right of queer couples to adopt and stated that Regulation 5(3) of the CARA regulation could not be held unconstitutional.

Right to marry is only a statutory right, and not a constitutional one, says Justice Narasimha, and if such a statute does not exist which provides a right to marry for heterosexual couples, then simply such right cannot be exercised, the matter shall go to the parliament first, so that the government can enact a law on the matter. Justice Narasimha further stated that it would not be constitutionally permissible to recognize a right to civil union mirroring a marriage.

Justice Hima Kohli agreed with the view of Justice Ravindra Bhatt and Justice Narasimha.

HELD

The Supreme Court on 17.10.2023 refused to grant legal recognition for queer marriages in India saying that it is a matter of the legislature to decide. All the five judges formulated a common platform where they agreed that there exists no fundamental right to marry. The Supreme Court refused to grant constitutional validity to same – sex marriage by a 3:2 majority. No constitutional or fundamental right was given to civil unions. Moreover, no right of joint adoption was given to queer couples. Although, the bench allowed the Centre to proceed with the proposed cabinet secretary – headed panel to address the raft of concerns of same – sex couples, including ration cards, pensions, succession and more, without legal recognition of their relationship as a “marriage.”

The court also unanimously held that the queer couples have a right to cohabit without any threat of violence, coercion or interference; but refrained from passing any directions to formally recognize such relationships as marriages. The bench further held that there was no fundamental right to marry and that the Court could recognize LGBTQIA+ persons right to marry under the Special Marriage Act, 1954 as it recognizes heterosexual couples, i.e., a biological male and a biological female, which further is non-violative of Article 14 of the Indian Constitution.

ANALYSIS

The recent landmark case in the Indian Judiciary was notable for its profound and detailed arguments on an important issue. While not explicitly opposing same-sex marriage, these arguments underscored the need for significant improvements within our legal framework to better accommodate it. They highlighted deficiencies that arise from a system primarily structured for heterosexual relationships. When considering the enactment of laws, ensuring inclusivity across all facets becomes imperative, rather than a reason to resist broadening legal provisions initially. It is pertinent to mention that the questions posed by the Solicitor General to the Indian judiciary to be pertinent and valid. While legalizing same-sex marriage is possible, it necessitates addressing existing loopholes first, a process that will likely be time-consuming but essential for meaningful change. Furthermore, the path towards legalizing same – sex marriage necessitates a thorough examination of how current laws can be expanded and refined to reflect the evolving social and cultural landscape. Not only will it take time but it would require careful consideration of various legal, societal, and ethical implications. Nevertheless, addressing these challenges head – on is a critical step towards building a more inclusive and equitable legal framework that respects the rights and dignity of all individuals, regardless of their sexual orientation or gender identity.

REFERENCE

STATUTE REFERRED

• Special Marriage Act § 4(c) (Act No. 43 of 1954)
• Constitution of India, Article 15
• Constitution of India, Article 246

WEBLIOGRAPHY REFERRED

• FreeLaw, ‘Supreme Court referred petitions related to same – sex marriage to the Constitution Bench,’ FreeLaw, https://www.freelaw.in/legalnews/
• Lawbeat, ‘Same – Sex Marriage Recognition: Solicitor General Tushar Mehta argues why issue’ Lawbeat https://lawbeat.in/top-stories/same-sex-marriage
• Economic Times Legal, ‘Queerness is not urban elite, says CJI Chandrachud in marriage equality in marriage equality case’ Economic Times Legal, https://legal.economictimes.indiatimes.com/
• Central Adoption Resource Authority (Cara), Adoption Regulations 2022 https://cara.wcd.gov.in/PDF/adoption%
• Indian Express, ‘SC Verdict on Same – Sec Marriages Explained, Indian Express, https://indianexpress.com/article/explained/explained-law/