Right To Marry Still A Distant Dream for Same-Sex Couples In India

In a setback to the LGBTQIA+ community, the final verdict of the Supreme Court on legitimizing same-sex marriages stands at 3:2.

Three out of the five judges disagreed with the Hon’ble Chief Justice and Justice Kaul that a civil union can be recognized under the Constitution.

All five judges unanimously agree that there is no fundamental right to marriage.

Is the right to marry a fundamental right?

The Petitioners had challenged the denial of access to the institution of marriage to the members of the LGBTQ+ community, as being in violation of Part III of the Constitution of India, especially Articles 14, 15, 19, and 21. The Petitioners had prayed that the Special Marriage Act, of 1954 be interpreted in a manner neutral to gender and sexual orientation to include same-sex couples within its ambit.

Further, it was argued that same-sex marriage cannot be denied on the grounds that the conventional legal system confers recognition only to a union between a man and a woman.

The Petitioners had contended that the right to marry itself is a fundamental right within the scope of Article 21 of the Constitution of India, and thus, should be available to all persons.

Marriage is a union between a man and a woman only

The State had opposed the legalization of same-sex marriage, contending that whether a particular union is to be recognised as a marriage, is a decision that falls within the legislative domain and is not a matter of judicial interpretation.

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It argued that conferring the right to marriage between queer couples would create havoc within the legislative framework, which is premised on marriage being between a man and a woman. It was contended that such recognition would create confusion in the interpretation of laws of marriage, succession, adoption, etc.

The State had contended that while the LGBTQ+ community has the right to love and to cohabit as they choose, there is no fundamental right of marriage that they can claim under the Constitution. The State had proposed that it would set up a Committee that could deliberate on and redress the issues faced by same-sex couples.

The Hon’ble Court has pronounced a judgment with four opinions.

Courts cannot make law but interpret it

The Hon’ble Chief Justice in his opinion shed light on the doctrines of separation of powers and the doctrine of judicial review. He observed that the Courts cannot make law, but can only interpret it.

He observed that Fundamental Rights cast a positive obligation on the State. Therefore, the right to marry itself is not a fundamental right, but a construct of the legislature. However, choosing a life partner is a fundamental right under Articles 19 and 21 and thus, homosexual couples cannot be discriminated against. He further underscored the importance of family, intimate association, and companionship and emphasized that the State must take steps to recognise these unions and associations.

He further held that striking down Section 4 of the Special Marriage Act, of 1954 would be a regressive approach. Nor can words be read or inserted into the Special Marriage Act, 1954 as that would amount to judicial legislation, reiterating that this area was confined to the legislature.

The Hon’ble Chief Justice held that his ruling does not direct the State to recognise a homosexual union as a marriage, but to ensure that they are not discriminated against and are given all the legally recognized entitlements that are available to all persons. He expressed disagreement with Hon’ble Justice Bhat in so far as his judgment holds that the Special Marriage Act, 1954 is not discriminatory.

Queer couples have a place in society

Hon’ble Justice S. K. Kaul concurred with Hon’ble Chief Justice and held that historically queer couples have a place in society. The right to form a civil union flows from the Constitution. He held that while the Special Marriage Act is discriminatory, to read in words into the legislation would be unworkable. He recommended the need for an anti-discrimination law to combat the discrimination against homosexual couples.

Hon’ble Justice Bhat penned a separate opinion, with which Hon’ble Justice Kohli concurred. They agreed with the Hon’ble Chief Justice that there is no fundamental right of marriage. He further held that the Special Marriage Act is not discriminatory.

The state can step in to protect couples from violence

He referred to various legislations that regulated the institution of marriage. He distinguished the cases of Shakti Vahini and Shafin Jahan on the grounds that those cases were cases in which the State stepped in to protect couples from violence. Likewise, he held that the right of marriage cannot be equated to a fundamental right and is a matter that must be left to the legislature.

Likewise, he recognized the right to a relationship under Article 21 and if such couples are under fear and coercion the State must step in to protect them. However, there is no positive obligation on the State to recognize a homosexual union.

He held that there can be no judicial creation of an institution, and that the interpretation as pronounced by the Petitioners may expose women to consequences that may cause them to lose their legislative protections.

Privileges accorded due to marriage are discriminatory against homosexual couples

He further held that the various privileges granted by laws to married couples have the effect of discriminating against homosexual couples, e.g. provident fund, pension fund, succession, and inheritance. He disagreed with Hon’ble Chief Justice on the question of unmarried couples being able to adopt as a matter of policy and ought not be interfered with by the judiciary. Furthermore, he reiterated that the doctrine of separation of powers and judicial review is limited in matters of policy.

Justice Narsimha agreed with the decision of Justice Bhat and Kohli. He observed that there are various rights available to the LGBTQ community including the right to autonomy, relationship etc.

There is no fundamental right of marriage under the Constitution, and there is no unconditional right of marriage. The State is obliged to protect the relationships of homosexual couples. However, there is no civil union that can be recognised under our law, agreeing to the opinion of Justices Bhatt and Kohli.

The Hon’ble Bench passed detailed directions to the State and law enforcement machinery to ensure that homosexual couples are not discriminated against and that care is taken to cater to their safety and welfare. The bench unanimously emphasized that the Ld. The Solicitor General had recommended that the committee chaired by the Cabinet Secretary sit to look into the rights of homosexual couples, their safety, and welfare.

Directives to the state

Hon’ble CJI issued detailed directions to the State to take steps to protect the health and safety of same-sex couples.

• Ensure queer community is not discriminated against.
• Ensure there is no discrimination in access to goods and services.
• Sensitize the public about queer rights.
• Create a hotline for the queer community.
• Create safe houses or Garima grih for queer couples.
• Ensure intersex children are not forced to undergo operations.
• No person shall be forced to undergo any hormonal therapy.
• No queer person or couple must be forced to return to their natal families.
• No queer person or couple must be summoned or interrogated about their gender identity or sexual orientation

Ultimately, the Hon’ble Court has left it to the committee proposed by the Hon’ble Solicitor General to iron out the rights, entitlements, and concerns of homosexual couples.

Cabinet Secretary led Committee entrusted to decide on queer couple rights

The high-powered committee shall be tasked with ruling out the rights and entitlements of queer unions. The rationale behind this step is that the concerns arising out of a same-sex union shall involve a range of policy choices that the state is institutionally equipped to deal with.

The committee shall decide and consider queer couples as a family for the purposes of material benefits and economic rights like—ration cards, joint bank accounts, rights flowing from a pension, gratuity, etc.

Further, the committee shall undertake administrative measures to ease the routine concerns of homosexual couples in the domains of government services, banking, insurance, etc.

Recommended read:

• 10 Reasons Why We Need Same-Sex Marriage In India
• Let’s Talk Of Constitutional And Legal Rights Of The LGBTQIA+ Community In India
• Dear Allies, Use Your Privilege To Uplift, Not Speak For LGBTQ+

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