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Background
The Supreme Court on Tuesday refused to recognize the right of same-sex couples to enter into marriages or have civil unions Supriyo @ Supriya Chakraborty and anr v. Union of India].
Court Composition
- The judgment was rendered by a Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha. The Bench rendered four separate judgments.
- The majority opinion was delivered by Justices Bhat, Kohli and Narasimha with Justice Narasimha delivering a separate concurring opinion. CJI Chandrachud and Justice Kaul delivered separate dissenting judgments.
Recognition of Marriage and Civil Unions
- Among other developments during the course of the hearings, the Court noted that:
- – The US Supreme Court’s decision that there was no Constitutional right to abortion was incorrect in the Indian context, and that an individual’s right to adopt was not affected by their marital status in India.
- – Recognising same-sex unions was up to the Legislature, but the government may have to ensure that same-sex couples are given social and other benefits and legal rights without the label of marriage.
- – Courts cannot decide on issues based on young people’s sentiments.
- – Marriages are entitled to constitutional and not just statutory protections.
- The lead petition was filed by Supriyo Chakraborty and Abhay Dang, two gay men living in Hyderabad.
- Supriyo and Abhay have been a couple for almost 10 years. They both contracted COVID-19 during the second wave of the pandemic and when they recovered, they decided to have a wedding-cum-commitment ceremony to celebrate the ninth anniversary of their relationship.
- However, despite the same, they do not enjoy the rights of a married couple, the plea pointed out.
- It was also contended that the Supreme Court in the Puttaswamy case, held that LGBTQIA+ persons enjoy the right to equality, dignity and privacy guaranteed by the Constitution on the same footing as all other citizens.
- Reference to the court’s evaluation of international legal precedents and their relevance in the Indian context.
- Insights into the court’s views on the role of the judiciary in deciding on issues related to same-sex unions.
Highlights of CJI Chandrachud’s minority judgment:
– Queerness is not urban or elite.
– There is no universal concept of marriage. Marriage has attained the status of a legal institution due to regulations.
– The Constitution does not grant a fundamental right to marry and the institution cannot be elevated to the status of a fundamental right.
– Court cannot strike down provisions of the Special Marriage Act. It is for Parliament to decide the legal validity of same-sex marriage. Courts must steer clear of policy matters.
– Freedom of queer community to enter into unions is guaranteed under the Constitution. Denial of their rights is a denial of fundamental rights. Right to enter into unions cannot be based on sexual orientation.
– Transgender persons have the right to marry under existing law.
– Queer couples have the right to jointly adopt a child. Regulation 5(3) of the Adoption Regulations as framed by the Central Adoption Resource Authority (CARA) is violative of Article 15 of the Constitution for discriminating against the queer community.
– Centre, states, union territories shall not bar queer people from entering into unions to avail benefits of the state.
