In what was supposed to be a landmark judgment, the Supreme Court of India today refused to legally recognise same-sex marriage and said that the decision of whether or not same-sex marriage will be legal shall be left to the legislature, i.e. the government. The judgment however, stressed upon the right of the individual to enter into a union with the person of his choice and this right cannot be restricted on the basis of sexual orientation of a person. The five-judge bench through the 4 judgements given by them also talked about the adoption rights of queer couples.

The Chief Justice of India while reading out his judgment said that the SC can only interpret laws and cannot make them and stressed about the separation of powers. The CJI during his judgment also said that he will not violate the doctrine of separation of powers. He countered the argument put up by the Union of India that the concept of queerness or homosexuality is not an urban concept but something which has stayed with us in our culture for hundreds of years. “To say that queer people exist only in urban and elite spaces is to erase them. It is not an English-speaking man with a white-collar man who can claim to be queer but equally a woman working in an agricultural job in a village.”

The CJI in his judgment also said that the state has the right to intervene to democratise private spaces and said that it was the legislature that brought the change and not activism. He also said that the court only went into the Special Marriage Act and no other laws. The CJI said that if the Special Marriage Act is struck down, it will take the country to the pre-Independence era, and weaving words into the SMA would amount to entering the realm of the legislature. The CJI also said that the right to enter into union includes the right to choose one’s partner and right to recognise that union and that it is the duty of the centre to recognise the union as formal recognition by state is necessary to avail benefits of society.

Justice SK Kaul of the bench agreed with the CJI’s judgment and said that same-sex relationships have been recognised from antiquity, not just for sexual activities but as relationships for emotional fulfillment. He also quoted the Rig Veda and Sufi traditions to make his point. Justice Kaul further said that the SMA is violative of Article 14 of the constitution. He said, “However, there are interpretative limitations in including homosexual unions in it. As rightly pointed out by the SG, tinkering with the SMA can have a cascading effect.” Justice Kaul further added that the legal recognition of non-heterosexual unions is a step towards marriage equality and that unions: heterosexual and non-heterosexual are both sides of the same coin.

Justice Raveendra Bhat while reading out his judgment opined that he does not agree with the CJI and said, “Marriage is a social institution. The marital status is not conferred by the state. The idea of marriage is not a fundamental right,” he said. Justice Bhat said there is a paradox which runs deep in the court’s mind and intervention of the state has to be through state action and be compelled by the agency of this court.

He said the judgment of the CJI propounded a theory of a unified thread of rights and how lack of recognition violated rights. “However, when the law is silent, Article 19(1)(a) does not compel the State to enact a law to facilitate that expression,” he said. Justice Bhat also added that it is the legislature that can create a legal framework for the queer couple and said, “All queer persons have the right to choose their partners. But the State cannot be obligated to recognize the bouquet of rights flowing from such a Union,” he said.

Justice Bhat said that a gender-neutral interpretation of the SMA will not be viable and equitable. Such interpretations will result in women being exposed to certain vulnerabilities in an unintended manner. He also said that the denial of benefits such as PF, ESI, and pension to queer partners may have adverse discriminatory effects.

Same-sex partners from pension, PF, gratuity, and insurance needs to be undertaken.

Justice PS Narasimha in his judgment said that the people from the LGBTQIA+ have the right to gender identity, right to sexual orientation and right to cohabitation. He said that marriage is conditioned with legislative intervention and also said that CARA regulations are not void. Justice Narasimha said it would not be Constitutionally permissible to recognize a right to civil union mirroring a marriage. He also said that a review of legislative schemes that exclude same-sex partners from pension, PF, gratuity, and insurance needs to be undertaken.

On the topic of adoption rights of queer couples, the bench of the Supreme Court ruled 3:2, where Chief Justice of India DY Chandrachud and Justice SK Kaul recognised the right of queer couples to adopt, while Justice S Ravindra Bhat, Justice PS Narasimha and Justice Hima Kohli disagreed. However, this does not mean that queer people will not be able to adopt children as under the provisions of Hindu Adoption and Maintenance Act, JJ Act, 2015 and CARA guidelines individuals (single persons) are allowed to adopt children with certain restrictions, such as a single male will not be able to adopt girl child. This means that even though a queer ‘couple’ will not be able to adopt, a queer individual who is in a relationship with another queer individual will be able to adopt individually but not jointly.

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