SC refuses to give marriage equality right to LGBTQIA+ community

NEW DELHI: A five-judge Supreme Court Constitution bench has in majority verdict ruled that for LGBTQIA+ couples there is no unqualified right to marriage and that conferring legal status to civil union can only be through enacted law.

The bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha delivered the verdict it had reserved on May 11 this year.

The court, however, said the judgement will not preclude the right of Queer persons to enter into relationships. The apex court also said that the challenge to Special Marriage Act (SMA) on the ground of under-classification is not made out.

Justice Ravindra Bhat, Justice Narasimha and Justice Hima Kohli were in agreement on these positions, while CJI Chandrachud and Justice Sanjay Kishan Kaul took divergent positions.

At the start of the judgment the bench clarified that there were four judgements in the case. One by CJI Chandrachud, another by Justice Sanjay Kishan Kaul, a third by Justice Ravindra Bhat and the last by Justice Narasimha.

In his judgement the CJI passed the directions that the Union government and State governments must ensure there is no discrimination against the Queer community. The CJI said it should be ensured that there is no discrimination in access to goods and services to the queer community.

There is a need to sensitise public about queer rights. The Union and state Governments must create a hotline for queer community to prevent harassment. The government must create safe houses for queer couple. Government also must ensure inter-sex children are not forced to undergo operations.

The CJI said that it should be ensured that no person shall be forced to undergo any hormonal therapy. There shall be no harassment to queer community by summoning them to police station solely to enquire about their sexual identity. Police should not force queer persons to return to their natal family. Police should conduct a preliminary enquiry before registering an FIR against a queer couple over their relationship.

The CJI said this Court has the power to hear the case. Queer is a natural phenomenon known to India from ages. It is neither urban or elitist. Marriage is not static. Supreme Court cannot strike down Special Marriage Act or read words into the Act due to the institutional limitations. Failure of the State to recognise the bouquet of rights flowing from a queer relationship amounts to discrimination.

Right to enter into union cannot be restricted on the basis of sexual orientation. Transgender persons in heterosexual relationships have the right to marry under the existing laws including personal laws.

On adoption of children by queer couples, the CJI in his judgement said, unmarried couples, including queer couples, can jointly adopt a child. The Union Government, State Government and Union Territories shall not discriminate against the right of the queer community to enter into union.

The CJI directed the Union Government to constitute a committee to decide the rights and entitlements of persons in queer unions. The Committee shall consider to include queer couples as family in ration cards, enabling queer couples to nominate for joint bank account, rights flowing from pension, gratuity etc. The Committee report to be looked at the Union Government level.

In his concurring judgement Justice Sanjay Kishan Kaul said legal recognition of same sex unions is a step towards marriage equality, however, marriage is not the end. Justice Kaul said let us preserve the autonomy as it does not impinge on others rights.

Justice Ravindra Bhat and Justice Narasimha disagreed with the CJI on various aspects of the judgement.

Justice Bhat said there cannot be an unqualified right to marry which is to be treated as a fundamental right. While we agree that there is a right to relationship, we squarely recognise that it falls within Article 21. It includes the right to choose a partner and enjoy physical intimacy with them including right to privacy, autonomy etc. and should enjoy this right undisturbed from the society and when threatened State has to protect the same. There cannot be any doubt that there is a choice to have a life partner.

Justice Bhat said the Court can't put State under any obligation when there is no constitutional right to marry or legal recognition of unions among non-heterosexual couples. Justice Bhat said the Court cannot create a legal framework for queer couples and it is for the legislature to do as there are several aspects to be taken into consideration. All queer persons have the right to choose their partners but State cannot be obligated to recognise the bouquet of rights flowing from such a union.

Justice Bhat further said a general neutral interpretation of Special Marriage Act may not be equitable at times and can lead to women being led to vulnerabilities in an unintended manner. The purpose of terms like wife, husband etc. is aimed to protect the vulnerable and the women facing domestic violence is there to ensure they receive justice. Thus, interpreting the Special Marriage Act as desired would render it unworkable.

Justice Bhat also disagreed with the CJI on the right of queer couples to adopt and he raised certain concerns.

In his conclusion Justice Bhat said there is no unqualified right to marriage. Conferring legal status to civil union can only be through enacted law. But these findings will not preclude the right of queer persons to enter into relationships.

In his order Justice Bhat said challenge to Special Marriage Act on the ground of under-classification is not made out. Transgender persons in homosexual relationships have the right to marry. State shall ensure queer persons are not harassed.

Justice Hima Kohli said she agrees with the view of Justice Ravindra Bhat. Justice Narasimha also said he agrees with the view of Justice Ravindra Bhat.

The five-judge Constitution bench was dealing with a batch of petitions pertaining to marriage equality rights for LGBTQIA+ community. The order was reserved on May 11 after counsels from all sides concluded their arguments.

The Constitution bench had begun the hearing on the matter on April 18 and the hearing went on for nearly 10 days. The court had clarified that it will deal with the issue under the provisions of the Special Marriage Act and will not touch the personal laws on this aspect.

The Centre has opposed the plea and said that parliament and not the court, should consider the issue. The Centre called it an Urban elite concept but the court did not agree

During the hearing the Centre had agreed to examine issues relating to giving some certain rights to LGBTQIA + but opposed legal recognition to the same-sex couple.