Supreme Court says no to same-sex marriage, refuses to amend Special Marriage Act

The Supreme Court on Tuesday refused to grant legal status to same-sex couples to enter into marriages or have civil unions and refused to amend the provisions in the Special Marriage Act as requested by the petitioners. The court said that Parliament should decide on the issue as the top court cannot make laws, but can only interpret it. 

The five-judge Supreme Court bench—comprising Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli and Justice PS Narasimha—heard for 10 days a batch of 20 petitions arguing for Constitutional recognition of same-sex marriage. The case was reserved for judgement on 11 May. The lead petition was filed by two Hyderabad-based queer men Supriyo Chakraborty and Abhay Dang, who have been living together.

During the hearing, the Supreme Court Constitution bench rendered four judgements – written by Chandrachud, Kaul, Bhat and Narasimha. The majority opinion was delivered by Justices Bhat, Kohli and Narasimha with Justice Narasimha wrote a separate, but concurring opinion. CJI Chandrachud and Justice Kaul delivered separate dissenting judgments.

All the judges said that same-sex couples cannot demand for the right to marry as a fundamental right and they also refused to strike down the Special Marriages Act and the Foreign Marriage Act for not recognising queer marriages. 

CJI Chandrachud, in his minority judgement, said the SMA could not be struck down as that would take India back by several decades and he held that Regulation 5(3) of the Central Adoption Resource Authority (CARA) regulations were in violation of Article 15 of the Constitution. He noted that queer persons had the freedom to enter into unions and that is guaranteed under the Constitution

CJI noted the Solicitor General Tushar Mehta’s statement that the Union Government would constitute a committee to decide the rights of queer couples. 

Justice Kaul said same-sex unions must be recognised as a union to give partnership and love and stated that SMA was violative of Article 14 of the Constitution. Kaul agreed with Chandrachud that there were limitations for the court to amend the SMA and that the legislature should decide on it. 

Opposing the judgement of CJI, Justice Bhat said the legal union of marriage can only be enacted through the law. Bhat also noted the union government’s decision to constitute a high-powered committee to examine the rights and benefits to queer couples. He maintained that marriage was a "social institution" and so it could not be treated as a fundamental right. Agreeing with CJI, Bhat said that the court would not create a law for queer couples as it was for the legislature to do as there were several policy matters to be considered. He agreed with the CJI that transgender persons in heterosexual relationships could marry in accordance with existing laws. 

However, he underscored that queer couples had a right to relationships. Justice Bhat held wrote, “All queer persons have the right to choose their partners, but the state cannot be obligated to recognise right flowing from such a union. We disagree with the CJI on this.” Justice Hima Kohli concurred with Justice Bhat. 

Agreeing with Justice Bhat, Justice Narasimha said that the right to marry was not a statutory right flowing from the Constitution. He argued that CARA regulations could not be held as unconstitutional and there was a need to review schemes such as pension, insurance and gratuity as it excluded queer couples. 

What the petitioners argued?

During the hearing, senior advocate Abhishek Manu Singhvi, appearing for the petitioners aid that the petitioners were not seeking an interpretation of every gendered word in the Special Marriage Act (SMA) in a gender-neutral way. “We are only leaning on those parts of the SMA that require a constitution-compliant reading on grounds of discrimination.”

Singhvi underscored that until the rights of non-heterosexual couples to marry under the Hindu Marriage Act (HMA), 1955, are accommodated by the Court or the legislature, non-heterosexual marriages will not meet the preconditions for the triggering of Section 21A of the HMA. Section 21A of the HMA deals with divorce.

He pointed out to the court that non-heterosexual Hindu couples who marry under the SMA would be excluded from legal succession acts: “They will be governed by the Indian Succession Act, 1925 (ISA) like the non-Hindu couples.”

The petitioners argued against civil unions as they would not be an equal alternative and were not considered a 'marriage'. 'By excluding same-sex couples from civil marriage, the state is declaring that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples. 

Taking the argument further, senior advocate Raju Ramachandran pointed out that lack of recognition would lead to the denial of equal protection under the existing laws. He submitted that in the case of a heterosexual marriage under the SMA, each one of the statutes would stand as they are because of the higher Constitutional mandate under Article 15(3).

Section 3 of Article 15 says that nothing in the article should prevent the government from making any special provisions for women and children.

Both senior advocates Anand Grover and Geetha Luthra had stated they were concerned about the Foreign Marriage Act too, as that shouldn’t be ignored while the focus is on SMA. “Petitioners here have a valid marriage. I have a right to it in terms of being an India[n] citizen and a citizen of India married abroad. When I come to India, I become nothing,” submitted Luthra.

Senior advocate Saurabh Kirpal, whose elevation to the Delhi High Court has been stalled on grounds of his sexuality, stated that the idea was to be an equal citizen in India: "To have same rights as everyone else. A declaration of marriage must be formalised so that it can practically impact [the] lives of any two people. There must be some formal aspect to carry out that larger [C]onstitutional right. Section 4 of [the] SMA gives just that." 

He reminded the courtroom that legalising same-sex marriages under SMA need not mean that the Act would become unworkable for heterosexuals.

Appearing for the Delhi Commission for Protection of Child Rights (DCPCR), which has supported same-sex marriage, senior advocate Menaka Guruswamy said she was responding to the submissions of same-sex parenting and adoption rights of same-sex couples by the National Commission for Protection of Child Rights (NCPCR). NCPCR has stated that it was against adoption rights for same-sex couples.

Winding up the arguments, senior advocate Arundhati Katju argued that a declaration would go a long way towards recognising the rights of same-sex couples. "Do not let my humanity be reduced to a single identity. The Court has stated that a person [has] the right to family and procreation, but that stems from the status of being married itself,” said Katju.

Union government opposed the petition

The Centre had opposed it on the grounds that it is an 'urban elitist concept' and only Parliament should make laws. Both the Madhya Pradesh and Rajasthan governments said they were opposed to same-sex marriage, but Andhra Pradesh, Assam, Uttar Pradesh, Maharashtra, Manipur and Sikkim requested for more time to study the issue.

The Union government had claimed that people would use the legal recognition given to non-heterosexual marriages to defend incestuous relationships. The Madhya Pradesh government argued that the demand of same-sex couples that their marriages be treated at par with heterosexual marriages is not a matter of rights, and he attempted to say that the dignity of heterosexual marriages would be affected because the relationship between a husband and a wife was meaningful since antiquity.

The apex court had questioned the government as to whether social welfare benefits could be given to same-sex couples without legal recognition of such marriages.