New Delhi: The Supreme Court of India refused to grant legal recognition and validation to same-sex marriage in the country with a 3:2 judgment delivered by the 5-judge bench on 17 October 2023.
However, the bench also mutually agreed to establish a committee headed by cabinet secretary who will examine the rights and entitlements of persons in queer unions without bringing the same under the definition of “marriage” as per the SMA.
The historical ruling was announced by SC’s bench headed by CJI DY Chandrachud which comprised 4 other judges namely SK Kaul, SR Bhat, PS Narasimha, and Hima Kohli.
Earlier on 11th May, the concerned apex court reserved its verdict on the pleas after a continuous 10-day-long hearing on the matter. CJI DY Chandrachud, SK Kaul, SR Bhat, PS Narasimha, and Hima Kohli. were also part of the bench that was entertaining the plea regarding same-sex marriage rights.
The petition sought to establish the same marriage rights for homosexual couples as heterosexual couples. During the hearing, the petitioner’s side argued that since India is a marriage-based culture, homosexual couples popularly known as LGBTQ should be given the same marriage rights such as insurance and medical benefits, inheritance, succession decisions, adoption, maintenance, the status of “Spouse” and other surrogacy matters which heterosexual couple enjoys in the country.
Live Streaming from the Supreme Court
Update: 1:00 PM IST: Same-sex marriage fails to get legal recognition in India
The top court pronounced its final verdict on the legal validation and recognition of same-sex marriage in India and refused to grant homosexual & queer couples the same marriage rights as heterosexual couples in India.
Welcoming the SCI’s ruling, the president of the Supreme Court’s Bar Association Adish Aggarwal said, “Welcome the decision of the Supreme Court where they have not allowed same-sex marriage,”
#WATCH | “I welcome the decision of the Supreme Court where they have not allowed same-sex marriage,” says Supreme Court Bar Association president Adish Aggarwala. pic.twitter.com/7yHPeImcvz
— ANI (@ANI) October 17, 2023
On the other side, Senior counsel Geeta Luthra, who represented the petitioners in the case said that although they (couples in queer unions) have not been granted the right to marry, CJI has spoken about providing them with the same bundle of rights enjoyed by a heterosexual married couples
Speaking with ANI on the matter, leading LGBTQA+ rights activist Anjali Gopalan said “We have been fighting for long and will keep doing so. Regarding adoption also nothing was done, what the CJI said was very good regarding adoption but it’s disappointing that other justices didn’t agree…this is democracy but we are denying basic rights to our own citizens.”
#WATCH | Supreme Court refuses to give marriage equality rights to the LGBTQIA+ community in India
One of the petitioners and activist Anjali Gopalan says, ” We have been fighting for long and will keep doing so. Regarding adoption also nothing was done, what the CJI said was… pic.twitter.com/2ZyjPmdvi7
— ANI (@ANI) October 17, 2023
Update: 12:50 PM IST: It is for Parliament to change the Special Marriage Act, CJI DY Chandrachud
While announcing his judgment on over 20 pleas seeking the lawful recognition of same-sex marriage between queer persons, CJI said that its for the parliament and the legislature to change/amend the Special Marriage Act as the court can only interpret the law not make it.
Update: 12:39 PM IST: Justice Ravindra Bhat reads his judgment
Justice Ravindra Bhat, while reading his judgment, said that he disagreed with the Chief Justice’s directions issued on the Special Marriage Act. He further said that an unquantifiable right to marry cannot be treated as a fundamental right. He also voiced his disagreement against the CJI’s decision on granting queer couple’s right to adopt and raise a child saying that he has a number of concerns regarding the same.
However, Ravindra Bhatt agreed with CJI’s take on the right to a relationship saying, “We agree that there is a right to a relationship, we squarely recognize that it falls within Article 21. It includes the right to choose a partner and enjoy physical intimacy with them including the right to privacy, autonomy, etc., and should enjoy this right undisturbed from society and when threatened State has to protect the same.”
Update: 12:30 PM IST: CJI reads operative part of the Judgment
CJI DY Chandrachud reads out operative part of the Judgment
Watch FULL VIDEO – https://t.co/e2USCjkOjx#SupremeCourtofIndia #SameSexMarriage #MarriageEquality #SupremeCourt pic.twitter.com/rQgFfaN3Zn
— Bar & Bench (@barandbench) October 17, 2023
Update: 12:25 PM IST Heterosexual and homosexual unions same side of the coin
In Agreement with the Chief Justice, member of the 5-judge bench Justice SK Kaul said that both heterosexual and homosexual unions need to be seen as same side of the coin.
“Legal recognition of same-sex unions is a step towards marriage equality. However, marriage is not the end. Let us preserve autonomy as it does not impinge on others’ rights”, he added further.
Update: 12:18 PM IST: Key takeaways from the CJI’s Judgement
- Queer and homosexuals persons have the right to enter into a union just like heterosexual couples
- Court can’t read down Special Marriage Act
- Just like the unmarried couples, queers can also opt for Joint adoption
- It’s for the Parliament and State government to give legal validation and recognize queer marriages
- State and police to ensure that queer people’s rights get protected and they face no discrimination because of their sexual orientation.
- A trans male and female can be a heterosexual man or a woman
- Union Government to constitute a committee to decide the rights and entitlements of persons in queer unions
Update: 12:00 PM IST: Union Government to constitute committee to decide the rights and entitlements of persons in queer unions
CJI DY Chandrachud said that neither the center nor state government can prevent queer people from entering into a union in order to be eligible for availing the benefits of the state.
The court also directed the Union Government to constitute a committee led by the cabinet Secretary to address and decide various rights and entitlements of queer couples including pension, joint account, rights flowing from gratuity, ration cards, etc.
Marriage equality case | “Union Government will constitute a committee to decide the rights and entitlements of persons in queer unions. This Committee to consider to include queer couples as ‘family’ in ration cards, enabling queer couples to nominate for joint bank accounts,… pic.twitter.com/WLHibSY92K
— ANI (@ANI) October 17, 2023
Update: 11:45 AM IST: CJI on rights of queer couples
CJI in a crucial development remarked that if homosexual couples are denied the rights and benefits enjoyed by the heterosexual couple then it will amount to the violation of their fundamental rights which will be against the Constitution.
However, at the same time, the bench also said that’s its on the parliament and state legislatures to give legal validation to queer marriages and recognize the same.
Update: 11:30 AM IST: Government to create hotline for queer community
CJI Chandrachud directed both the Center and State governments to make sure that the rights of queer people don’t get compromised and discriminated against because of their sexual orientation.
Government agrees to establish a hotline for the queer community, create safe housing ‘Garima Grih’ for queer couples who face violence, and ensure inter-sex children are not forced to undergo operations. after petitioners mentioned the violence, discrimination, and hostile treatment faced by the queer community in the country. Earlier, police forces were also directed by the court to ensure queer people don’t get harassed and compelled to ascertain a particular gender identity while making a preliminary inquiry compulsory before registering an FIR against a queer couple about their relationship.
Same-sex marriage case | CJI directs Centre and State governments to ensure that there is no discrimination in access to goods and services to the queer community and government to sensitise public about queer rights. Government to create hotline for queer community, create safe… pic.twitter.com/DDeFhZSxrD
— ANI (@ANI) October 17, 2023
Update: 11:10 AM IST: Homosexuality and queerness not urban or elite
CJI, while giving his take on homosexuality and queerness, said that neither of the two are exclusively urban concepts that are restricted to the elite class of society. Queerness can be seen as a person’s caste, class, or social and economic status.
Previously during the hearing, the Supreme Court said that it has already dealt with concepts like Judicial review and Balance of Power between all three pillars of the state. He once again laid empty on the importance of Judicial review while saying that the “doctrine of Separation” Of power” cannot and does not bar the court’s power of judicial review as the court is empowered by the Constitution to protect the fundamental rights of its citizens.
CJI DY Chandrachud: doctrine of separation of powers CANNOT stand in the way of this court to issue a writ to protect fundamental rights. Courts cannot make law but can interpret and give effect to it. Then on subject of QUEERNESS IS NOT URBAN OR ELITE. in the limited exploration…
— Bar & Bench (@barandbench) October 17, 2023
Update: 10:59 AM IST: Degree of agreement and degree of disagreement
CJI Chandrachud has asserted that the court can’t force the Parliament and State assemblies to create a new marriage institution. He further said that marriage is something that can’t practically remain static, unchanging, and stagnant.
Earlier, he started the court proceeding by saying “There is a degree of agreement and a degree of disagreement”
CJI DY Chandrachud: I am sorry we were late due to some ceremonial formalities for Justice Ravindra Bhat.
There are 4 judgments in this case, By me , Justice Kaul, Justice Bhat and Justice PS Narasimha
There is a degree of agreement and degree of disagreement… pic.twitter.com/C5iAtTJVAp
— Bar & Bench (@barandbench) October 17, 2023
Advocates representing the petitioners
Senior counsels who are representing the petitioner’s case are Menaka Guruswamy, Mukul Rohatgi, Raju Ramachandran, Abhishek Manu Singhvi, Anand Grover, Geeta Luthra, Saurabh Kirpal, and KV Viswanathan.
All these lawyers have time to time voiced for equal rights for same-sex and LGBTQA couples.
Centre on Same-sex marriage
Arguments in Supreme Court by SG Tushar Mehta before CJI DY Chandrachud led bench during the Same Sex Marriage case#SupremeCourt #MarriageEquality #SupremeCourtofIndia https://t.co/XCI2A6EugZ
— Bar & Bench (@barandbench) October 17, 2023
Notably, the central government of the country has strictly opposed petitioners’ appeal by labeling their views as “urban and elitist”.The government has also argued that instead of the court, it’s the parliament where this matter should be discussed and debated.
Calling same-sex marriages incomparable with the Indian family system, the government further argued that LGBTQ couples lack the basic ingredients of an Indian family which has a husband, wife, and children as its components.
