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No legal sanction to same-sex marriage; SC leaves it to Parliament to frame laws

First Published: 17th October, 2023 14:21 IST

The judges asked the centre to proceed with the formation of a committee to address practical concerns of same-sex couples, such as getting ration cards, pension, gratuity and succession issues.

The Supreme Court on Tuesday delivered the much-anticipated order on the issue of legalising same-sex marriage. The apex court did not grant legal recognition to same-sex marriages, and left it to the Parliament to make laws to enable it.

The five-judge Constitution bench that was hearing the pleas comprised Chief Justice DY Chandrachud and Justices SK Kaul, SR Bhat, Hima Kohli and PS Narasimha, however, stressed that queer persons had the right to choose their partners and asked the Centre to ensure that couples were not discriminated against. The five-judge bench ruled 3:2 against adoption of children by same-sex couples in four separate judgements.

The judges asked the centre to proceed with the formation of a committee to address practical concerns of same-sex couples, such as getting ration cards, pension, gratuity and succession issues.
The centre had on May 3 told the court that it plans to form a committee headed by a cabinet secretary to explore administrative solution to problems faced by same-sex couples without delving into the marriage equality question.

The bench gave a 3-2 judgment on the question of adoption rights. 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.

“There is a degree of agreement and a degree of disagreement on how far we have to go. I have dealt with the issue of judicial review and separation of powers,” he said, Justice Chandrachud said.

Choosing a life partner is an integral part of choosing one’s course of life, the Chief Justice said. “Some may regard this as the most important decision of their life. This right goes to the root of the right to life and liberty under Article 21,” he said.

“The right to enter into union includes the right to choose one’s partner and the right to recognition of that union. A failure to recognise such associations will result in discrimination against queer couples,” the Chief Justice said, adding, “the right to enter into union cannot be restricted on the basis of sexual orientation”.

Disagreeing with the centre’s argument that marriage equality is an urban, elite concept, the Chief Justice said, “Queerness is not urban elite. Homosexuality or queerness is not an urban concept or restricted to the upper classes of the society.”

Supporting adoption rights for queer couples, he said there is nothing to probe that only heterosexual couples can provide stability to a child. “There is no material on record to prove that only a married heterosexual couple can provide stability to a child,” he said, adding that the Central Adoption Resource Authority “exceeded its authority” in barring adoption by same-sex couples.

Justice Kaul agreed with the Chief Justice that there is a need for an anti-discrimination law.

The Supreme Court said it cannot strike down the provisions of the Special Marriage Act (SMA) and the CJI has left the decision on the issue to the Parliament.

“The court cannot strike down the Special Marriage Act or read words into the law due to institutional limitations. The court cannot read words into allied laws like the Succession Act as it would amount to legislation,” the Chief Justice said.

Justice Kaul, who said that the Special Marriage Act is violative of Article 14, also noted that “there are interpretative limitations in including homosexual unions in it.” He added, “As rightly pointed by Solicitor General, tinkering with Special Marriage Act can have a cascading effect”.

The Chief Justice, however, noted that it is “incorrect to state that marriage is a static and unchanging institution,” adding that “reforms in marriage have been brought about by Acts of the legislature.”

“It is for the Parliament to decide whether a change in the regime of the Special Marriage Act is needed,” CJI noted. This Court must be careful not to enter into the legislative domain, he stated.

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