Supreme Court refuses to legalise same-sex union, leaves it to Parliament

The Supreme Court on Tuesday refused to legalise same-sex marriages, ruling that there is "no unqualified right" to marriage under the Constitution and that it lies in the domain of the Parliament to enact laws to validate such unions.

A five-member constitution bench headed by Chief Justice of India (CJI) DY Chandrachud unanimously ruled that there is "no universal conception of the institution of marriage, nor is it static".

The bench said "it lies within the domain of Parliament and the state legislatures to enact laws recognising and regulating queer marriage".


The Constitution "does not expressly recognise a fundamental right to marry", the bench ruled.

Judges Differed on Certain Rights | page 14
"An institution cannot be elevated to the realm of a fundamental right based on the content accorded to it by law," it said.

However, the judges differed on certain rights of same-sex couples. The CJI along with Justice Sanjay Kishan Kaul ruled that queer couples have the right to "civil union" and to adopt children. Justices S Ravindra Bhat and Hima Kohli ruled against it, with PS Narasimha concurring with them.

In their separate judgments, though, the judges accepted the Centre's offer to set up a panel to consider granting more rights and benefits to same-sex couples.

The ruling came in response to 21 petitions filed by same-sex couples and activists, who had moved the apex court seeking validation of same-sex marriage and consequential reliefs such as rights to adoption, enrolment as parents in schools, opening of bank accounts and availing succession and insurance benefits. However, the top court left all these for Parliament to decide.

The CJI said at the outset that there were four judgments - by himself, Justice Kaul, justices Bhat and Kaul, and Justice Narasimha - in the matter. The CJI and outgoing Justice Bhat (who retires on October 20), agreed in their respective judgments that the court "cannot either strike down the constitutional validity of the Special Marriage Act" or read words into it because of its institutional limitations. The bench unanimously agreed, in reference to granting legal recognition to same-sex marriage, that the court "must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain".

The judges agreed that queer couples cannot be discriminated against, and issued a slew of directions to the government authorities and police to ensure that. They also unanimously held that "transgender persons in heterosexual relationships have the freedom and entitlement to marry under the existing statutory provisions".

The bench was also critical of the Centre's stand that the pleas for legal validation of same-sex marriage was reflective of an urban elitist concept, saying queerness is neither an urban nor an elite concept or characteristic.

Regarding civil union among queer couples, the CJI said, "The failure of the state to recognise the bouquet of entitlements which flow from a union would result in a disparate impact on queer couples who cannot marry under the current legal regime. The state has an obligation to recognise such unions and grant them benefit under law." The judgment authored by him further said, "The right to enter into a union cannot be restricted based on sexual orientation. Such a restriction will be violative of Article 15. Thus, this freedom is available to all persons regardless of gender identity or sexual orientation." Countering this view, Justice Bhat said in his judgement, "An entitlement to legal recognition of the right to union - akin to marriage or civil union, or conferring legal status upon the parties to the relationship can be only through enacted law. A sequitur of this is that the court cannot enjoin or direct the creation of such regulatory framework resulting in legal status."

Justice Bhat said this should not be read "as to preclude queer persons from celebrating their commitment to each other, or relationship, in whichever way they wish, within the social realm". He further said that the top court "is alive to the feelings of being left out, experienced by the queer community; however, addressing their concerns would require a comprehensive study of its implications involving a multidisciplinary approach and polycentric resolution, for which the court is not an appropriate forum to provide suitable remedies".

In their separate judgments, the judges recorded the statement made by solicitor general Tushar Mehta that the central government will constitute a committee, chaired by the cabinet secretary, for "the purpose of defining and elucidating the scope of the entitlements of queer couples who are in unions".Justices Bhat and Kohli also said in their separate judgements that the state legislatures can also take action for recognising marriages of queer persons in absence of a central law.

The CJI, in his judgment, directed that the committee, before finalising its decision, conduct wide stakeholder consultation among queer people. He asked the panel to consider "enabling partners in a queer relationship (i) to be treated as a part of the same family for the purposes of a ration card; and (ii) to have the facility of a joint bank account with the option to name the partner as a nominee, in case of death".

The committee has also been directed to consider "legal consequences such as succession rights, maintenance, financial benefits..., and rights flowing from employment such as gratuity and family pension and insurance".

Justice Kaul, in his judgment, underscored the "necessity of recognising civil unions; need for an anti-discrimination law" and granting "equal rights to equal love".

Concurring with the CJI, Justice Kaul said, "Is this the end where we have arrived? The answer must be an emphatic 'no'. Legal recognition of non-heterosexual unions represents a step forward towards marriage equality." He concluded his judgment citing Bon Jovi's classic song 'It's my life'.