Cannot legalise same-sex marriage: SC

Context: A five-judge Constitution Bench of the Supreme Court headed by Chief Justice of India (CJI) refused to grant legal status to same-sex marriages

Four key issues: 

The judgement revolved around the four key questions: 

  1. Whether there is a fundamental right to marriage in India?
  2. Whether the words in the Special Marriage Act 1954 could be given a gender-neutral meaning?
  3. The question over queer couples’ right to adopt a child. 
  4. Whether a civil union be realised under Indian law?

Evolution of Rights for Homo-sexuals:

Some key milestones:

  • 2014: National Legal Services Authority vs. Union of India: A significant development occurred with the Supreme Court of India recognizing transgender people as a third gender. This landmark judgment acknowledged their rights and provided legal recognition and protection to the transgender community.
  • 2017: Justice K. S. Puttaswamy vs. Union Of India: Another important step was taken in 2017 when the Supreme Court of India ruled that privacy is a fundamental right. This decision had far-reaching implications for the LGBTQ+ community as it paved the way for greater recognition and protection of their rights to privacy and personal autonomy.
  • 2018: Navtej Singh Johar vs. Union of India: In a historic verdict, the Supreme Court of India struck down the colonial-era law known as Section 377 of the Indian Penal Code. This law criminalized consensual same-sex relationships, and its decriminalization was a crucial step towards ensuring equality and dignity for homosexual individuals. The judgment emphasized that sexual orientation is an inherent aspect of an individual’s identity and discrimination based on it is a violation of fundamental rights.
  • 2022: Supreme Court noted that all types of atypical family units (single parents, transgenders, same-sex couples) are also entitled to legal recognition and protection under various social welfare legislation like typical heterosexual family units.

Key issues

1. Right to Marry:

  • Petition: The petitioners had argued that there exists a fundamental right to marry a person of one’s own choice under the Constitution and that the court must address the denial of that right. If the court recognised this as a fundamental right (like it did in the case of privacy in the 2017 Aadhaar ruling), then it would cast an obligation on the state to protect this right.
  • The majority view upheld that the right to marriage is not a fundamental right. SC has underlined that the issue of same-sex marriage can only be resolved through the legislative route. However, the right to enter into a union/relationship is unrelated to sexual orientation and is a feature of fundamental rights in Articles 19 and 21.
    • Present status: Govt. has already acknowledged the right to love, the right to cohabit, the right to choose one’s partner, right to one’s sexual orientation as fundamental rights under Artice 21.

2. Interpretation of Special Marriage Act 1954:

  • Petition: The SMA was enacted in 1954 to enable marriage between inter-faith or inter-caste couples without them giving up their religious identity or resorting to conversion. The petitioners had asked the SC to recognise same-sex marriage by allowing a gender-neutral interpretation of the legislation that governs a civil marriage, in which the state rather than religion, sanctions the marriage. The petitioners had asked the SC to interpret the word marriage as between “spouses” instead of “man and woman”. Alternatively, the petitioners had asked for striking down provisions of the SMA that are gender-restrictive.
  • The majority ruling stated that the court could not interpret the SMA to include same-sex couples since the objective of the legislation is not to include same-sex couples within the realm of marriage. The provisions and the objects of the SMA clearly point to the circumstance that Parliament intended only one kind of couples, i.e., heterosexual couples belonging to different faiths, to be given the facility of a civil marriage.
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3. Queer couples’ right to adopt a child:

  • Petition: The petitioners had argued that the guidelines of the Central Adoption Resource Authority (CARA), which does not allow unmarried couples to jointly adopt children, are discriminatory against queer couples who cannot legally marry.
    • The guidelines allow only a couple who have been in at least two years of a stable marital relationship to be eligible to adopt.
    • Individually, queer persons can adopt as single people. However, a single male is not eligible to adopt a girl child — even though a single female is eligible to adopt a child of any gender.
  • The majority view largely agreed with the discriminatory aspects of preventing queer couples from adopting children, and that couples tied together in marriage are not a ‘morally superior choice’, or per se make better parents. But the majority view said that this change cannot be “achieved by the judicial pen”, rather the remedy is to be provided by legislature. 
    • The fact that Parliament has made the legislative choice of including only ‘married’ couples for joint adoption (i.e., where two parents are legally responsible), arises from the reality of all other laws wherein protections and entitlements flow from the institution of marriage. 

4. Civil unions for queer couples:

  • Petition: Before full marriage rights were recognised for same-sex couples by the US Supreme Court, several states had allowed civil unions. However, the petitioners argued that civil unions are not an equal alternative to the legal and social institution of marriage, and relegating non-heterosexual relationships to civil unions would send the queer community a message that their relationships were inferior to those of heterosexual couples.
  • The majority view disagreed that the court can prescribe a choice of civil unions to queer people. It is difficult to create the right to civil union through a judicial diktat. 

Positives of the judgement:

The Supreme Court of India has issued directives to both the Union government and state governments to prevent discrimination against the queer community based on their sexual orientation. Here are the key directives:

  1. Non-Discrimination: The government must ensure that there is no discrimination against the queer community in terms of access to goods and services.
  2. Public Awareness: Efforts should be made to sensitize the public about the rights of the queer community. (including that it is natural and not a mental disorder)
  3. Helpline for Queer Community: A dedicated helpline should be established to provide support and assistance to the queer community which they can contact when they face harassment and violence in any form.
  4. Safe Houses: Safe houses (Garima grehs) should be created in each district to offer protection/shelter to queer couples who may face threats or harassment.
  5. Forced operations of Inter-Sex Children: Treatments offered by doctors or other persons, which aim to change gender identity or sexual orientation, cease with immediate effect. Inter-sex children are not forced to undergo operations with regard only to their sex, especially at an age at which they are unable to fully comprehend and consent to such operations.
  6. Formation of Committee: The SC recorded the statement of the Solicitor General that the Union government will constitute a committee to decide the rights and entitlements of persons in queer unions. The issues before the committee will be mentioning queer couples as family in ration cards, allowing queer couples to nominate for joint bank account, allowing them all the rights that from from pension, gratuity, etc.

The Supreme Court has also issued specific directions to the police:

  1. No Harassment: Police should not harass queer couples by summoning them to police stations or visiting their residences solely to inquire about their gender identity or sexual orientation.
  2. Freedom of Choice: Queer individuals should not be forced to return to their families if they do not wish to do so.
  3. Protection of Freedom: When queer individuals file complaints alleging that their family is inhibiting their freedom of movement, the police should verify the genuineness of the complaint and ensure their freedom is not curtailed.
  4. Protection against Violence: If a complaint is filed apprehending violence from the family due to the complainant’s queer identity or relationship, the police should verify the genuineness of the complaint and provide appropriate protection.
  5. Preliminary Enquiry: Before registering an FIR against a queer couple or an individual in a queer relationship, the police should conduct a preliminary enquiry to determine if the complaint discloses a cognizable offence, following the guidelines set in the Lalita Kumari vs Government of UP case.

India needs a separate anti-discrimination law which inter alia prohibits discrimination based on sexual orientation. Presently, several laws have an anti-discrimination aspect to them but they are fragmented and may fail to capture the multitudinous forms of discrimination.  

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