The Supreme Court denied the petition to seek marriage equality, refusing to grant it legal recognition under the Marriage Act.
Ever since the Supreme Court issued notice to the Centre on May 11 after a marathon hearing for 10 days on the petition seeking the right to legalise same-sex marriage in India, everyone had their eyes to see what would be. But after a long wait of hope and anticipation, the apex court's latest hearing seems null and void. The Supreme Court of India held the hearing for the petition filed to recognise same-sex marriage and for it to be given equal rights as heterosexual marriages. The petition filed called for queer couples to enjoy the status of spouse in finance and insurance issues; medical, inheritance, and succession decisions, and even in adoption and surrogacy matters. However, in a 3:2 verdict, the court disregarded the same refusing equal marriage rights for queer couples.
The five-judge Constitution Bench was headed by Chief Justice of India, DY Chandrachund. While CJI Chandrachud and Justice Sanjay Krishan Kaul said the right of same-sex couples to enter civil unions flows from Part 3 of the Constitution, Justices S Ravindra Bhat, Hima Kohli and P S Narasimha had a disputed opinion. CJI also mentioned how the Supreme Court could not strike down the provisions of the Special Marriage Act and Foreign Marriage Act for not recognising queer marriages.
The Centre also claims that although the Supreme Court passed its judgment on Section 377, the fundamental right to recognize same-sex marriage has been left to the Parliament. The reply was in response to three petitions filed last year by Dr Kavita Arora and Ankita Khanna, the second by Parag Vijay Mehta and Vaibhav Jain, and the third was filed by Abhijit Iyer Mitra and three others.
Also Read: Central Govt opposes same-sex marriage in Delhi court
Justice Kaul acknowledged that non-heterosexual unions were to be protected under the Constitution. He said that both non-heterosexual and heterosexual unions should be considered as part of the same coin. The Center argued that being queer was an elite and urban concept. CJI said, "homosexuality was not solely an urban concept not is it restricted to the upper classes of privileged communities... people may be queer regardless of whether they are from villages, small towns or semi-urban and urban spaces." Justice Bhat mentioned that although all queer persons have the right to choose their partners, he disagreed with CJI stating that the State can't be obligated to recognise it under the rights. Regarding transgender individuals who are in a heterosexual relationship, the court said that they have the right to marry under the Special Marriage Act and other existing laws.
CJI and Justice Kaul also held that Regulation 5(3) of the CARA Regulations was in violation of Article 15 of the Constitution since it prohibited unmarried and queer couples from adopting. This was disagreed by Justice Bhat and Justice Hima Kholi stating that Regulation 5(3) of CARA could not be held unconstitutional. Justice Narasimha agreed to the same but stated that the legislative schemes which exclude queer couples from financial support like pensions, PF, gratuity, insurance and more were to be reviewed. He said, "A review of the impact of the legislative framework in this case requires deliberative exercise and for the same, the legislature is entrusted to do so constitutionally."
SC asks the government to set up a committee to reduce the discrimination faced by the community while examining the rights and benefits of queer couples. The Court has however listed down guidelines that the Center can follow to prevent discrimination of the queer community.
CJI directs the Centre to:
1. Ensure queer community is not discriminated against.
2. Ensure there is no discrimination in access to goods and services.
3. Sensitise the public about queer rights.
4. Create a hotline for the queer community.
5. Create safe houses or Garima grih for queer couples.
6. Ensure inter-sex children are not forced to undergo operations.
7. No person shall be forced to undergo any hormonal therapy.
8. Police should not harass queer people or force them to return to their natal families.
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