The story so far: The legal road to marriage rights — six months, five years and even longer in the making — has reached a divisive pit stop. A five-judge Bench of the Supreme Court on Tuesday announced a 3:2 verdict on petitions seeking the rights for members of the LGBTQ community to marry and choose family. The Court declined to legalise same-sex marriage, placing it upon the Parliament and State governments to decide if non-heterosexual unions can be legally recognised.
The verdict weaves together four separate judgments, running into 366 pages, documenting “a degree of agreement and a degree of disagreement,” as the Chief Justice of India D.Y. Chandrachud noted. The disagreement centred on how far the law can go on matters of adoption rights and the right to form civil unions. The majority opinions were held by Justices S. Ravindra Bhat, Hima Kohli and P.S. Narasimha, and the minority views by the Chief Justice and Justice S.K. Kaul.
There was an overall majority affirming that trans persons in heterosexual relationships have the “right to marry under the existing laws or personal laws,” and general consensus about the harassment and discrimination faced by people in queer relationships.
The Hindu decodes the verdict, its impact on queer unions and where it sits in the larger queer rights movement. “We have been denied marriage,” says Anish Gawande, co-founder of the Pink List. “It is a rejection of the right to marry as a fundamental right.”
What did the Court say about marriage rights?
A 3:2 verdict
All ‘aye’
Majority vs. minority opinions
The Supreme Court while hearing the petitions in April averred it would steer clear of personal laws and stick to examining if the Special Marriage Act of 1954 (SMA) can accommodate marriage rights for queer relationships. “There were hopes that interim measures which would provide unmarried queer couples with the same bundle of rights that come along with marriage might be recognised by the Court,” says Harikartik Ramesh, an assistant professor of family law at Jindal Global Law University.
The verdict, however, refused to afford legal recognition to same-sex marriages since marriage “as a social institution predates all rights, forms of political thought and laws,” and there is no unqualified right to marry that people can claim as a fundamental right. The Bench affirmed that people have a right to choose one’s partners and to cohabit with one another. “The capacity of non-heterosexual couples for love, commitment and responsibility is no less worthy of regard than heterosexual couples. Let us preserve this autonomy, so long as it does not infringe on the rights of others,” Justice Kaul said in his opinion, quoting Bon Jovi’s “it’s my life”.
The Court also refused to strike down or read words to interpret the Special Marriage Act (SMA) as gender-neutral: doing so would both infringe upon the legislature’s role and have a “cascading” impact on other laws. “If the Special Marriage Act is struck down, it will take the country to the pre-independence era,” the verdict states. SMA, as a secular framework, was passed in 1954 to govern unions where the state sanctions the marriage rather than the religion. The petitioners had argued that queer couples can seek legal refuge in frameworks like the SMA and Foreign Marriage Act; creating marriage legislation only for heterosexual couples would render both Acts discriminatory. However, “the Court did not make that finding, with Justice Kaul being the only judge to clearly state that the SMA violated the equality provisions of the Constitution,” Mr. Ramesh explains.
Justice Bhat, however, also argued that a gender-agnostic reading of SMA could spell doom for women. Mr. Ramesh said that he did not agree with this given how the Indian Penal Code “still has a marital rape exception on its book and the Court is yet to strike down the archaic process of restitution of conjugal rights.” There are no provisions in the SMA for the benefit of women which are so fundamental that a gender-neutral interpretation would cause women great harm, he adds. Moreover, SMA leaves women and marginalised groups vulnerable too, owing to elements such as the 30-day notice and domicile provision requirements, according to civil rights organisations.
“There is no real meaningful application of the case — it keeps the status quo running.”Harikartik Ramesh, assistant professor of family law
Can States make their own laws?
The verdict poses the marriage equality question for the legislature. In the absence of any central law, the judgment holds that State legislatures can enact laws recognising and regulating same-sex marriages; the Constitution under Articles 245 and 246 empowers both the Parliament and the State to enact marriage regulations. “The State may choose from a number of policy outcomes; they may make all marriage and family-related laws gender neutral, or they may create a separate SMA-like statute in gender-neutral terms to give the queer community an avenue for marriage, they may pass an Act creating civil unions, or a domestic partnership legislation, among many other alternatives,” opined Justices Bhat and Kohli.
Tamil Nadu amended the Hindu Marriage Act in 1968 through Section 7(A) to allow self-respect or ‘Suyamariyathai’ marriages; the amended Act “questioned the Brahminic interpretations of Hindu marriage”.
However, States such as Andhra Pradesh, Assam, Gujarat, Madhya Pradesh and Rajasthan have opposed outright the legal recognition of same-sex marriages in the past.
On the right to form civil unions
The minority opinion batted for the state to recognise queer unions, even if not in the form of marriage. The right to enter a union cannot be restricted on the basis of sexual orientation (which violates Article 15 of the Constitution); moreover, marriage is significant because of a bouquet of rights, and for same-sex couples to enjoy these entitlements, “it is necessary that the state accord recognition to such relationships,” the CJI said. Justice Kaul added that the government should create a regulatory framework to recognise such relationships.
However, the majority opinion said the government is not “obligated to recognise the bouquet of rights flowing from such a Union.” Justice Bhat added in his opinions that, “If we throw caution to the wind, we stand the risk of paving the way (wherein each brick may feel justified) to untold consequences that we could not have contemplated.”
Since Justice Bhat’s majority view rejects interpreting legal statutes to recognise civil unions, it is “unlikely that this version of statutory interpretation will find much purchase,” says Mr. Ramesh.
On trans persons’ rights
That trans persons have the right to marry under the existing framework formed the majoritarian opinion of the Bench. “The gender of a person is not the same as their sexuality,” the judgment noted. “Since a transgender person can be in a heterosexual relationship like a cis-male or cis-female, a union between a transwoman and a transman, or a transwoman and a cisman, or a transman and a ciswoman can be registered under Marriage laws.” Similarly, it said that intersex persons who identify as a man or a woman also share this right.
The Court affirmed the Madras High Court decision in Arun Kumar v. Inspector General of Registration, which declared marriage between a Hindu male and a transwoman a valid union. “This is a very small silver lining in the judgment,” says Mr. Ramesh. “It is yet to be seen if marriage registrars will take note of the judgement, and facilitate transgender people who wish to marry, or continue to create obstacles.”
An “unexpected” dimension of this verdict was the Court’s acknowledgement of transgender people’s ‘right to self-determination,’ says Mr. Ramesh. The observation counters the Transgender Persons (Protection of Rights) Act of 2019 which made self-identification “subject to certification by the State”; petitions since have called this clause unconstitutional. Mr. Ramesh adds that the Court’s present observations may not be binding, “but will be of persuasive value in future cases”.
On adoption rights
The majority opinion refused to strike down the Central Adoption Resource Authority (CARA) regulations that restrict queer couples from joining adopting a child. The law is equipped to protect the child in case a heterosexual marriage ends or a partner dies, but there is no such framework for homosexual couples at present, the judgment states, adding that it would not be in the interest of the child to strike down the regulations. The Bench, however, reiterated the need to strengthen sensitisation about queer relationships, noting that children of same-sex couples face stigma due to “the inherent biases that the society holds against queer communities.”
Mr. Ramesh points out the Court did not base its opinions on heterosexual couples being better parents than homosexual parents. The National Commission for Protection of Child Rights (NCPCR) earlier opposed adoption rights to same-sex couples, citing a perceived disadvantage and adverse psychological impact. The Delhi Commission for Protection of Child Rights, however, contended there is no evidence or empirical data to show children of same-sex couples are more affected than those of heterosexual couples. The CJI in his opinion noted that adoption regulations at present are discriminatory to the queer community and violative of Article 14, adding that “marriage alone does not give stability to a household”.
“The law cannot make an assumption about good and bad parenting based on the sexuality of individuals. Such an assumption perpetuates a stereotype based on sexuality (that only heterosexuals are good parents and all other parents are bad parents) which is prohibited by Article 15 of the Constitution.”
The majority view, however, ruled against adoption rights for same-sex couples. In consensus with Justices Narasimha and Kohli, Justice Ravindra Bhat said the regulations cannot be held unconstitutional. “This is not to say that unmarried or non-heterosexual couples can’t be good parents.. ..given the objective of section 57, the State as parens patriae (legal protector) has to explore all areas and to ensure all benefits reach the children at large in need of stable homes,” he observed.
On entitlements
The Court put on the record the Union Government’s submission that it will form a committee to decide the benefits and entitlements of persons in queer unions. The Committee would deliberate upon a bundle of rights preserved for heterosexual couples, such as ration cards, joint bank accounts, pension flows, and gratuity. Majority and minority opinions concurred that not providing queer couples equal rights to heterosexual couples in these contexts did amount to discrimination. The judges, however, disagreed on who remedies these policies: the judiciary or the legislature and executive.
Mr. Gawande, however, says, “Committees without a clear timeframe, a clear composition, and a clear locus of authority are pointless.”
On natal family violence and protection
Two petitions, Amburi Roy v Union of India and Rituparna Borah v Union of India, argued for the right to choose a family. Many queer persons face violence from natal families and are reportedly kidnapped in an attempt to end relationships. Both Justice Bhat’s majority opinion and Justice Chandrachud’s minority opinion indicate that people in queer relationships have the right against being separated through coercion and fear. Previous High Court orders have recognised the legitimacy of queer couples in live-in relationships and afforded them protection from violence. The judgment identified that families of LGBTQ persons as well as the police are the primary actors in such violence, and has issued directions to the police department to not force queer persons to return to their family.
The path for safety remains the same, explains Mr. Ramesh, where a person in a queer union has the right to file a habeas corpus petition. “It is to be seen if the police heed these instructions from the Court, and decide to assist these queer couples, and not their parents in situations of conflict.”
The CJI in his opinion recognised ‘atypical families’, elaborating that “our ability to feel love and connection with one another makes us feel human.... These relationships may take many forms, natal families, romantic relationships etc.” Senior counsel Vrinda Grover had submitted that non-recognition of such chosen families. “beyond constraints of marriage, blood or adoption”, violates Articles 14, 15, 19 and 21.
On sex, gender and discrimination
“We don’t expect this to be a significant bouquet of rights, not even close to what was demanded in the petitions before the Court.”Anish Gawande
The verdict observed that marriage is not a static institute and the “sole purpose of marriage is not to facilitate sexual relations or procreation, although that may be one of the main motivations for entering into a marriage.” The Union Government had reiterated in its submissions that same-sex marriage is incomparable to a man and woman living as a family because children are borne out of the union.
The government also dwelled on the ‘unnatural’ nature of queerness, arguing that homosexual unions are not innate, do not precede law and are non-Indian. The verdict debunks these to a degree, evoking the spirit of the 2018 ruling that “queer love has flourished in India since ancient times.” Moreover, the constitutional legitimacy of same-sex relations is not undermined “based on the level of acceptability that a particular practice has achieved”.
The Court agreed that queer couples have to contend with discrimination and harassment, unanimously noting that homosexuality was not restricted to the urban, upper class or privileged communities. It directed the Union Government to form a high-powered committee to look into their concerns. Mr. Gawande, however, was sceptical of these observations. “These statements made in the open court do not hold any weight unless accompanied by clear directives to ensure their implementation, or ensure some sort of time frame within which any action can be taken.”
The road ahead
The 2014 NALSA judgment affirmed transgender people’s fundamental rights. Three years later, K. Puttaswamy v Union of India linked privacy with the rights of queer persons. The landmark Navtej Singh Johar read down Article 377, decriminalising homosexuality as an unnatural offence.
Where does the current verdict sit? “There is no real meaningful application of the case — it keeps the status quo running,” says Mr. Ramesh. Beyond recognising natal family violence, it “doesn’t provide any real immediately actionable right to queer couples.”
The Court called on the Solicitor General’s submission that the government will constitute a committee, chaired by the Cabinet Secretary, to set out the benefits and entitlements for same-sex couples.
The battle to recognise queer unions may now have to change routes. Mr. Ramesh anticipates a fresh wave of cases once the Committee’s report comes out, especially if the findings favour the petitioners’ arguments. Or, the petitioners can file a judicial review of the verdict; reviews haven’t brought about 180-degree changes in the past, but exceptions such as the Sabarimala judgment review offer hope. Justice Bhat’s retirement on October 20 will also mean a new judge will sit on a potential review bench.Another option for people in queer relationships is to wage solitary battles for individual rights associated with marriage, such as joint bank accounts or pension, on the grounds of discrimination.
The fourth route may involve bypassing judicial remedies. The verdict, says Mr. Gawande, has pushed queer communities to go back to the drawing board and find alternate ways of expanding LGBTQ+ rights. “It’s become amply evident that the courts are not the only, let alone the most reliable, way of securing progress,” he adds. It would fall on different groups to build solidarity, amplify each others’ concerns and make demands upon elected representatives, especially ahead of the 2024 Lok Sabha elections.
“Queerness has to become an integral part of political conversations...That fight is only about to get harder and more important.”
