Why the SC ruling was a setback to India’s marriage equality movement

In a setback to India’s marriage equality movement, the Supreme Court on October 17 ruled against legalising same-sex marriages, holding that only the legislature can decide on the issue. While hearing 21 petitions filed by same-sex couples and activists, the top court made it clear that it can’t tinker with the scope of the Special Marriage Act (SMA), 1954, to include queer people and that it will not interfere with religious personal laws, leaving it to Parliament to look into the subject. The five-judge constitution bench, which had held a marathon hearing of 10 days in April-May earlier this year, comprised Chief Justice (CJI) D.Y. Chandrachud and Justices Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha.

Four separate judgments were given, one each by CJI Chandrachud, Justice Kaul and Justice Narasimha, and one written jointly by Justices Bhat and Kohli. The majority verdicts by Justices Bhat, Kohli and Narasimha declined to grant same-sex couples the right to enter civil unions and adopt children, while the minority verdicts by CJI Chandrachud and Justice Kaul batted for it. The bench, nonetheless, was unanimous in recognising that same-sex couples must not be discriminated against and asked the Centre and states to make laws to protect their dignity and rights.

What the SC said unanimously
Marriage is not a Fundamental Right: While the SC agreed that the right to seek social and legal validation through marriage is a matter of individual choice protected by the Constitution, it said there is no unqualified right to marriage guaranteed by the Constitution that qualifies it as a fundamental freedom. The right to marriage is a statutory right flowing from a legally enforceable customary practice. However, the SC recognised queer people’s right to choose a partner and enjoy physical intimacy with them, including the undisturbed right to privacy and autonomy. If this right is threatened, the court ruled, it falls upon the state to extend protection to them.

No tweak to SMA: The SC said the powers vested in it to review the constitutional validity of a law do not enable it to enter into such matters, “particularly those impinging on policy, which fall in the legislative domain”. So, it can’t read words into the SMA provisions to include queer couples in its scope. Only the legislature can do that.

Transgender persons can marry: The court ruled that transgender persons in heterosexual relationships have the right to marry under existing laws, including personal laws that regulate marriage.

Implication: A transgender person can be heterosexual or homosexual. Only heterosexual transgender persons can marry (if each partner meets other requirements in the applicable law). Such a marriage will be recognised under relevant marriage laws.

Government’s proposal to appoint a committee: The court accepted Solicitor General Tushar Mehta’s proposal on behalf of the Centre to set up a committee led by the cabinet secretary to look into practical difficulties same-sex couples face. The bench agreed that queer couples face discrimination in accessing basic services and said the panel must look into this.

No to civil union: A “civil union” refers to a legal status whereby cohabitating couples are allowed certain rights and responsibilities normally conferred upon married couples. The majority verdict said there are “almost intractable difficulties” in creating, through judicial diktat, a civil right to marry or a civil union as sought by the petitioners.

Implication: The judicial route to obtaining a right to civil union ends here. The last hope for queer couples now is the legislature.

No to adoption: The majority verdict, while admitting that same-sex couples aren’t any less capable of becoming parents, said adoption rights can’t be granted until same-sex marriages are recognised legally. In the absence of that, one partner could adopt a child as a single parent, without the other having any right over it. However, a memorandum issued by the Central Adoption Resource Authority (CARA) last year stalled that provision, stating that a single adoptive parent in a live-in relationship won’t be deemed eligible to adopt a child. The majority SC verdict upheld this.

Yes to civil union: The minority verdict said queer couples have a legal right to enter into a civil union. The CJI issued guidelines for the protection of the rights and dignity of queer people. But since his was a minority verdict, these directives now remain on paper.

Yes to adoption rights: The minority verdict recognised the right of queer people to adopt children. CJI Chandrachud even declared last year’s CARA memorandum ultra vires—that is, beyond its legal authority.

Courtesy: This news piece was originally published on thetelegraphindia.com purely for non-profit/non-commercial purposes exclusively for Human Right.