Supreme Court five-judge bench unanimously ruled against the legalisation of same-sex, though a 3:2 minority opinion favoured civil unions for queer couples with the right to adopt. The top court said the Constitution does not grant the fundamental right to marry and the institution of marriage cannot be elevated to the status of a fundamental right.
Justice S Ravindra Bhat, who led the majority opinion, said civil unions cannot exist in the absence of legislation. All queer persons have the right to choose their partners. But State cannot be obligated to recognize the bouquet of rights flowing from such a union,” he said.
“Creation of an institution depends on State action which is sought to be compelled through the agency of the Court,” Justice Bhat said.
There's a degree of agreement and degree of disagreement in how far the rights should go for marriage equality, CJI Chandrachud had said at the onset of the hearing. “Considering the importance of the issue, four distinct opinions have been penned,” he added.
In a nutshell, the majority opinion by Justices Bhat, PS Narasimha and Hima Kohli said there was no fundamental right to marry, civil unions could only be brought by legislation, one has a right to choose their own partner, transgender persons have the right to marry and one has the right to choose a partner of their choice.
CJI Chandrachud along with Justice SK Kaul held the minority view favouring civil unions with the right to adoption.
The top court’s verdict came on a batch of 20 pleas that sought marriage equality.
BOOM recaps the four differing opinions observed.
No unqualified right to marry, civil unions can be only through law: S Ravindra Bhat
Justice S Ravindra Bhat said queerness was not an urban or elitist concept but the majority opinion do not agree with the directions issued by CJI DY Chandrachud.
“This court has recognized that marriage is a social institution which pre-dates the State. This implies that marriage structure exists regardless of the State and is independent of it,” Justice Bhat said.
“The right to marriage is a statutory right that flows from custom,” Justice PS Narasimha said. “It would be constitutionally impermissible to recognize a right to a civil union mirroring a marriage,” he added.
“A gender-neutral interpretation of the Special Marriage Act may not be equitable at times and could result in women being exposed to vulnerabilities in an unintended manner,” Justice Bhat said.
On adoption right, Justice Bhat said law could not presume that heterosexual or homosexual couples do not make good parents. However, the state must explore all areas and ensure all benefits reach children at large in need of a stable home, he added.
“However much we empathise with the cause, the means to an end must also be legally sound,” Justice Bhat added. Justice Hima Kohli agreed with Justice Bhat’s view.
Institution of marriage not static or unchanging: CJI DY Chandrachud
Chief Justice of India DY Chandrachud along with Justice Sanjay Kishan Kaul favoured civil unions for queer couples. CJI Chandrachud said it was incorrect to state that the institution of marriage was static or unchanging.
However, reforms in marriage have been brought about by Acts or state legislature, he added. Withdrawal of the state from the domestic space leaves the vulnerable party unprotected. Thus, all intimate activities in a private space cannot be said to be beyond the state’s scrutiny, the top judge said.
A failure to recognize such associations will result in discrimination of queer couples, the judge said.
The Juvenile Justice Act does not preclude unmarried couples from adopting. It cannot be assumed that unmarried couples are not serious about their relationship. “there is not material on record to prove that only married heterosexual couples can provide stability to a child, the top judge said.
Justice Kaul said non-heterosexual unions and heterosexual unions must be seen as the same side of a coin. This moment is an opportunity to remedy the historical injustice and discrimination, he said adding that governance is needed to grant rights to such unions or marriages. Legal recognition of non-heterosexual couples is the first step towards marriage equality.