SC Leaves Decision Regarding Legal Recognition Of Queer Marriages To Legislature; Asks Govt To Form Committee To Determine Rights [Read Judgment]

A Supreme Court Bench of Chief Justice DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha has refused to grant legal recognition to same-sex marriages in India while concluding that it is a matter for the legislature to decide.

Further, the Bench concluded that the State shall constitute a committee to examine the rights and entitlements of persons in a queer union.

Solicitor General Tushar Mehta had appeared for the State before the Supreme Court.

In this case, the Court had heard a set of writ petitions filed in a concerted effort to secure legal recognition and validation of same-sex marriages.

The Bench pronounced four separate judgments, where 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.

Chief Justice DY Chandrachud's Judgment:

It was stressed that queerness is a natural phenomenon known to India since ancient times, and that it is not urban or elite. In that vein, it was held that unmarried couples, including queer couples, can jointly adopt a child. 

However, it was also held that there is no universal conception of the institution of marriage, nor is it static. In that context, it was further said that, "Under Articles 245 and 246 of the Constitution read with Entry 5 of List III to the Seventh Schedule, it lies within the domain of Parliament and the state legislatures to enact laws recognizing and regulating queer marriage".

It was further observed that the Court in the exercise of the power of judicial review must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain. In light of the same, the Court refused to either strike down the constitutional validity of the Special Marriage Act or read words into the Act.

It was recommended that the State has an obligation to recognize same-sex unions and grant them benefit under the law. In that context, it was said that, "The freedom of all persons including queer couples to enter into a union is protected by Part III of the Constitution. The failure of the state to recognise the bouquet of entitlements which flow from a union would result in a disparate impact on queer couples who cannot marry under the current legal regime. The state has an obligation to recognize such unions and grant them benefit under law."

Justice Sanjay Kishan Kaul's Judgment:

Justice Kaul concurred with CJI DY Chandrachud's Judgment.

It was also observed that, "Legal recognition of non-heterosexual unions represents a step forward towards marriage equality. At the same time, marriage is not an end in itself. Our Constitution contemplates a holistic understanding of equality, which applies to all spheres of life. The practice of equality necessitates acceptance and protection of individual choices. The capacity of non-heterosexual couples for love, commitment and responsibility is no less worthy of reggard than heterosexual couples. Let us preserve this autonomy, so long as it does not infringe on the rights of others."

The Judgment ended by quoting a Bon Jovi song called "it's my life".

 Justice S Ravindra Bhat's & Justice Hima Kohli's Judgment:

It was stressed that there is unqualified right to marriage except that recognised by statute including space left by custom. In that vein, it was further said that, "An entitlement to legal recognition of the right to union – akin to marriage or civil union, or conferring legal status upon the parties to the relationship can be only through enacted law. A sequitur of this is that the court cannot enjoin or direct the creation of such regulatory framework resulting in legal status." Further, the challenge to the SMA was rejected.

Directions were passed to the Union to set up a high-powered committee chaired by the Union Cabinet Secretary, to undertake a comprehensive examination of all relevant factors such as employment benefits: provident fund, gratuity, family pension, employee state insurance; medical insurance; material entitlements unconnected with matrimonial matters, but resulting in adverse impact upon queer couples.

Finally, it was said that, "This court is alive to the feelings of being left out, experienced by the queer community; however, addressing their concerns would require a comprehensive study of its implications involving a multidisciplinary approach and polycentric resolution, for which the court is not an appropriate forum to provide suitable remedies."

As for adoption rights for unmarried couples, it was   observed that, "As far as the learned Chief Justice’s comment with respect to this court not reading down ‘marital’ or striking down Regulation 5(3), the earlier discussion in Part VIII clarified that there was a conscious legislative policy while highlighting the interpretation of the term ‘spouse’. At the same time the court recognised the disparate, and even discriminatory impact, on children of individuals, who formed de facto families (with their unmarried partner). In our opinion, striking down the term ‘marital’ under Regulation 5(3) – would likely have unintended consequences, which cannot be comprehended by the court as it involves policy considerations. This is the reason for desisting from invalidating the provision but having left it to the State to take measures to remedy these impacts."

Justice PS Narasimha's Judgment:

Concurring with Justice Bhat's judgment and dissenting the CJI's observations, it was said that the benefits of marriage, however fundamental to a fulfilling life do not make marriage itself a fundamental right, but they render the right to an abiding cohabitation union fundamental.      

It was also stressed that "The policy considerations and legislative frameworks underlying these definitional contexts are too diverse to be captured and evaluated within a singular judicial proceeding. I am of the firm belief that a review of the impact of legislative framework on the flow of such benefits requires a deliberative and consultative exercise, which exercise the legislature and executive are constitutionally suited, and tasked, to undertake."                                     

Cause Title: Supriyo @ Supriya Chakraborty & Anr. v.  Union of India [2023 INSC 920]

Click here to read/download the Judgment