Supreme Court Refuses Recognition Of Same-Sex Marriage, CJI In Minority Opinion Embraces Queer Civil Unions

In a historic and groundbreaking development, the Supreme Court today expressed its reluctance to recognize and validate same-sex marriages, leading to the disposal of the Writ Petitions filed in a concerted effort to secure legal recognition and validation of such marriages.

The 5-Judge Bench consisting of Chief Justice DY Chandrachud and Justice Sanjay Kishan Kaul, Justice S. Ravindra Bhat, Justice Hima Kohli, and Justice P.S. Narasimha pronounced four separate judgments. The majority opinion was articulated by Justice Bhat, Justice Kohli, and Justice Narasimha while the minority opinion was presented by CJI Chandrachud and Justice Kaul.

The CJI at the outset stated, "There are 4 Judgements in all in this case. Judgement by the CJI, Judgement by Justice Kaul, Judgement by Justice Bhat and then by Justice Narasimha. There is a degree of agreement and a degree of disagreement on how far one has to go."

The summarized version of the key points from the judgment authored by CJI Chandrachud is Non-Discrimination and Equality: 1. Ensure no discrimination against the queer community based on gender identity or sexual orientation. 2. No discrimination in access to goods and services available to the public. 3. Sensitize the public about queer identity, emphasizing it as natural and not a mental disorder. 4. Establish hotlines for the queer community facing harassment. 5. Publicize safe houses in all districts for shelter from violence and discrimination. 6. Prohibit treatments aiming to change gender identity or sexual orientation. 7. Prevent forced operations on intersex children. 8. Recognize self-identity of gender for all, including transgender persons.

Police and Legal Actions: 1. Police must not interrogate or force queer individuals about their identity or orientation. 2. Ensure queers' freedom of movement; verify the genuineness of complaints. 3. Do not register a case when both parties are in a consensual relationship. 4. Recognize the freedom to marry as protected by the Constitution.

Marriage and Adoption: 1. The freedom to marry applies to all, regardless of gender identity or sexual orientation. 2. Regulations should include unmarried couples for joint adoption. 3. Define and establish entitlements for couples in the union, considering ration cards, bank accounts, medical consultation, jail visitation rights, and legal consequences. The CJI also directed that the Cabinet Secretary will lead a committee with experts to implement these changes at the administrative level by the central and state governments.

The CJI clarified that the Court cannot create a fundamental right to marry but recognized that the state's failure to recognize various entitlements for queer couples has a disparate impact on them. The freedom to enter into a union should not be restricted based on sexual orientation, as this would violate Article 15.

The Chief Justice also held that: Inclusion of Queer Couples in Union: Constitutional Protection: The inclusion of queer couples in the right to enter into a union is protected by Part Three of the Constitution. The state's failure to recognize the bouquet of entitlements that flow from such a union can result in a disparate impact on queer couples who cannot marry under the current legal regime.

Article 15 Amendment: Inclusion of Sexual Orientation: The CJI stated that in Article 15, the word "sex" should be amended to include sexual orientation. This change is necessary not only because of the causal relationship between homophobia and sexism but also because the word "sex" is used as a marker of identity, which cannot be rightly independent of the social and historical context. The right to enter into a union cannot be restricted based on sexual orientation, as such a restriction would violate Article 15. This freedom is available to all persons regardless of gender identity or sexual orientation.

Recognition of Queer Couples' Rights: SKS Puttaswamy Decision: CJI held that in the SKS Puttaswamy case, nine judges recognized the right of queer couples to exercise their choice to enter into a union. This relationship is protected from external discrimination on the basis of sexual orientation, which would violate Article 15.

Marriage Rights for Transgender Persons and Heterosexual Couples: The CJI stated, that transgender persons in heterosexual relationships have the right to marry under existing laws, including personal laws that regulate marriage. All persons who identify as either male or female have the right to marry under existing law. The state must enable the LGBTQ community to exercise its rights under the Constitution.

Freedom from Discrimination in Family Agencies and Adoption: The CJI stated, that all persons have the right to freedom from discrimination from state agencies, including the police, and other individuals. Unmarried couples, including same-sex couples, should be allowed to jointly adopt a child.

Amendment of Adoption Regulation 53: On this, the CJI directed that Amendment of Adoption Regulation 53 is necessary, as it is ultra vires the Juvenile Justice Act. Articles 14 and 15 of Regulation 53 need to be updated to exclude the word "marital" in reference to a couple. Regulation 5 should include both married and unmarried couples. The principal regulation, Section 5, which requires the consent of spouses in a married man, should also apply to unmarried couples wishing to adopt a child. However, when framing regulations, the state may impose conditions that serve the best interests and welfare of the child.

Justice SK Kaul concurred with the judgment of the CJI and stated, "Let us preserve this academy as long as it does not infringe on the rights of others."

However, Justice Ravindra Bhat, in his dissent with Chief Justice, summarized the conclusions and directions as follows: 1. The right to marriage is not an unqualified one, except as recognized by statute. This includes the space left for custom to provide legal recognition of the right to union, similar to a civil union or conferring legal status upon the parties in the relationship. However, this can only be done through legislation.

2. The court cannot create or direct the creation of such a regulatory framework as it may lead to legal status finding. This should not preclude individuals from celebrating their commitment in any way they wish within the social realm.

3. Previous judgments of the court have established that couples have the right to a union or relationship with mental, emotional, or sexual dimensions based on the right to privacy, choice, and autonomy. However, this does not extend to a claim of legal entitlement for the said union or relationship.

4. Any challenge to the same on the grounds of discrimination or non-discrimination should be based on the principles of equality. Indirect discrimination impacts relationships in terms of earnings, compensation, benefits, or social welfare entitlements where marital status is a relevant eligibility criteria.

5. The state needs to address and remove measures that affect couples forming relationships, and this should be done promptly to avoid injustice and unfairness in accessing benefits available to all citizens.

6. The court cannot engage in creating a judicial framework for this complex task. Instead, the state needs to study the impact of policies and entitlements and act in line with the statement before the court.

7. A high-powered committee chaired by the Cabinet Secretary should be set up during the proceedings to comprehensively examine all relevant factors, with input from stakeholders and states and union territories.

8. The discussion on discriminatory impacts should focus on existing norms. For queer and same-sex couples, the right to live together is not contested. However, the logic of discriminatory impact may not apply to transgender persons in non-matrimonial relationships.

9. The court opines that the CARA and the central government should consider the realities of families or individuals committed to a domestic relationship in unforeseen circumstances, especially when it comes to the welfare of children.

10. The state should ensure that the choices exercised by LGBTQ couples to cohabit are not interfered with, and they are not subjected to threats of violence. Necessary steps and measures should be taken in this regard.

11. These directions are specific to transgender persons and should be considered as part of and not in conflict with the existing directions in the previous case.

Justice Narasimha further concurring with Justice Bhat stated, "The Special Marriage Act, 1954, and the Foreign Marriage Act may face challenges for the reasons Justice Bhat has indicated in their opinion. Similarly, Justice Bhat has also rightly found the semantic impossibilities of gender-neutral constructions in both the Special Marriage Act and the Foreign Marriage Act, and their reasons have been exhaustively provided, needing no further supplementation."

Justice Narasimha stated, "I do not find a constitutional right to a civil union or a legally enforceable cohabitation relationship situated within Part III of the Constitution. On this count, I agree with Justice Bhat, but I would like to add my perspective. In my opinion, there is no inherent qualified right to marry in the ordinary course. The question then arises, whether further deliberation is warranted regarding the conclusion that a constitutional right to union or a binding cohabitation relationship exists. It is necessary for me to express my opinion on this new-found construction by Chief Justice regarding the components of the right to union or an abiding habitation of a relationship under Article 19(1)(a), Article 21, and Article 25 of the Constitution. In my opinion, it would not be constitutionally permissible to identify the right to union or an abiding cohabitation relationship as mirroring the institution of marriage, as identified by Chief Justice. Chief Justice identifies tangible and intangible benefits as a book of entitlement that arises from state recognition and regulation of marriages. According to Chief Justice, the right to marriage is not fundamental, but the benefits associated with marriage inform the reading of a constitutional right to an abiding cohabitation of union. In other words, the benefits of marriage, fundamental to a fulfilling life, do not make marriage itself a fundamental right. Yet, under the right to an abiding cohabitation of union, it is considered fundamental. I find it difficult to reconcile these two principles."

Continuing he stated, "In conclusion, I also agree with the reasoning and conclusion of Justice Bhat regarding the constitutionality of Regulation 53 of the CARA. However, I acknowledge the concerns of LGBTQ+ partners regarding the denial of access to certain benefits and privileges that are available only to married couples within the general statutory scheme. These benefits pertain to issues such as property, compensation, leave, and compassionate appointments. The denial is based on a certain definition and understanding of partner-dependent caregivers and family. Under this definition and understanding, it is true that certain classes of individuals, including same-sex partners, those in living relationships, and non-intimate caregivers, such as siblings, are left out. Some of these definitions have iniquitous and discriminatory impacts. The policy considerations and legislative framework underlying the Stephanie contacts are diverse and complex, and they require careful evaluation through a judicial process. I firmly believe that a review of the legislative framework's impact on the flow of such benefits necessitates a deliberate and consultative exercise, which the legislature and executive are best suited to undertake under our Constitution."

In conclusion, among the four separate judgments, Chief Justice DY Chandrachud and Justice SK Kaul affirmed that queer couples have a fundamental right to seek recognition for their union, yet they chose not to invalidate the Special Marriage Act for its failure to recognize same-sex marriages. In contrast, the other three judges, namely Justices Bhat, Kohli, and Narasimha, assert that queer couples cannot claim a right to recognition of their union in the absence of a statutory enactment.

On January 6, 2023, the Supreme Court clubbed and transferred to itself all Petitions pending before different High Courts across the country on the issue of granting legal recognition to same-sex marriages and asked the Centre to file its joint reply to all the petitions on the issue by February 15.

Later, the Supreme Court stated that keeping in mind Article 145(3) of the constitution, it would be appropriate if the issue raised were resolved by a five-judge bench and listed the matter before the Constitution Bench for the hearing to commence on April 18. Nearly 5-months have passed since the Court reserved its judgment following an intense and exhaustive ten-day marathon of hearings.

The batch of petitions challenged the provisions of the Hindu Marriage Act, Foreign Marriage Act and Special Marriage Act to the extent they do not recognize same-sex marriages. Additionally, the Petitions also sought a direction that the right to marry a person of one's choice be extended to LGBTQ (lesbian, gay, bisexual, transgender and queer) people as part of their fundamental right.

One of the Petitions also sought an interpretation of the Special Marriage Act, of 1954 in a gender-neutral manner where a person is not discriminated against due to his sexual orientation.

During the hearing, the Centre had sought that either all the States and Union Territories be made parties to the proceedings or the Centre be permitted to finish the consultative process with the States to obtain their views and place them on record. Centre had stated that any departure made on the issue of legalizing same-sex marriage without consulting the States and Union Territories, and without making them a party “would render the present adversarial exercise incomplete and truncated”.

The Solicitor General Tushar Mehta had also argued before the Supreme Court that the arguments made by the petitioners against restriction on same-sex marriage in the Special Marriage Act can possibly be used in future to challenge the restriction on incestuous marriages in the same statute. In an interesting exchange, the CJI also remarked that there is no absolute concept of a man or woman at all.

However, SG had submitted that a committee headed by the cabinet secretary would be constituted to explore administrative steps for addressing "genuine human concerns" of same-sex couples, without going into the issue of recognising their marriage. Also, during the hearing one of the intervenors before the constitution bench had sought CJI's recusal from hearing same-sex marriage cases.

Accordingly, on May 11, the Court reserved its verdict on a batch of pleas seeking legal validation for same-sex marriage. The Court also observed there is one constitutional doctrine which has remained steadfast and constant, that is, the court can't direct the framing of a policy and can't enter into the realm of policy-making or legislation.

The bench had made it clear that it would not go into personal laws governing marriages while on the other hand, some of the Petitioners urged the Apex Court to use its plenary power, "prestige and moral authority" to push the society to acknowledge such a union which would ensure LGBTQIA++ lead a "dignified" life-like heterosexuals.

Cause Title: Supriyo @ Supriya Chakraborty & Anr. v. Union Of India [Writ Petition (Civil) No. 1011 of 2022 & connected matters]