Why is it in the News?

A five-judge Constitution Bench led by Chief Justice of India (CJI) D Y Chandrachud unanimously rejected same-sex marriage recognition. In a 3-2 majority decision, the Bench also refused to authorize civil unions for non-heterosexual couples.

What is the Supreme Court's Observation?

The Denial of Marriage as a Fundamental Right:

• All five judges on the Bench agreed that there's no fundamental right to marry in the Constitution.

Limitations on Modifying the Special Marriage Act (SMA), 1954:

• They also unanimously agreed that changing the Special Marriage Act (SMA) of 1954 using gender-neutral language to allow same-sex marriage isn't possible.
• The petitioners wanted the Supreme Court to interpret the word marriage as being between spouses instead of man and woman.
• Alternatively, they asked for removing the gender-restrictive provisions of the SMA.
• The Chief Justice of India (CJI) said that striking down the SMA provisions would impact the legal framework for interfaith and inter-caste couples.
• Interpreting the SMA in a gender-neutral way, he added, would be like making new laws from the judiciary, which goes against the separation of powers.

Rejection of Civil Unions for Non-Heterosexual Couples:

• The bench ruled 3:2 against allowing civil unions for non-heterosexual couples.
• The minority judges believed that the right to form unions comes from the fundamental right to freedom of speech and expression, and the right to life.
• They argued that the right to enter into a union shouldn't be restricted based on sexual orientation, as it's a violation of Article 15 of the Constitution.
• The majority view was that it's the legislature's role, not the Court's, to recognize and grant legal status to non-heterosexual relationships formally.
• Regarding rights for non-heterosexual couples, all five judges noted that a high-level Cabinet committee will consider the rights that can be given to non-heterosexual couples.
• This could include joint bank accounts, same-sex spouses being beneficiaries for provident funds, pensions, inheritance, and making medical decisions for the other spouse.

Considerations on Adoption Rights of Children:

• On the rights to adopt children, the Supreme Court unanimously agreed that one's sexual orientation shouldn't determine one’s suitability to be adoptive parents.
• However, in a 3:2 split verdict, the Court upheld the existing regulations that deny unmarried couples, including queer individuals, the right to adopt a child as a couple.
• Since same-sex marriage isn't legal in India, they also cannot adopt children as a couple.
• In 2022, the Central Adoption Resource Authority (CARA) issued new Adoption Regulations, requiring a couple to be in a stable marital relationship for two years to be eligible for adoption.
• This made it impossible for queer couples to adopt, as it prohibited individuals in live-in relationships from adopting children.
• The minority view by CJI Chandrachud and Justice Kaul argued that CARA's guidelines discriminate against unconventional, unmarried couples seeking to adopt children.

What is the Legal Status of Same-Sex Marriages in India?

• The right to marry isn't explicitly recognized as a fundamental or constitutional right in the Indian Constitution; instead, it's a statutory right.
• However, the recognition of marriage as a fundamental right has evolved through judicial decisions by India's Supreme Court.
• These legal declarations are binding on all courts throughout India under Article 141 of the Constitution.

Earlier Views of the Supreme Court on Same-Sex Marriages:

• Marriage as a Fundamental Right (Shafin Jahan v. Asokan K.M. and others 2018):
• The Supreme Court, while referring to Article 16 of the Universal Declaration of Human Rights and the Puttaswamy case, determined that the right to marry a person of one's choice is an integral aspect of Article 21 of the Constitution.
• Article 16 (2) in the Indian Constitution prohibits discrimination based on religion, race, caste, sex, descent, place of birth, residence, or any of these factors.
• The right to marry is an inherent part of the liberty guaranteed by the Constitution as a fundamental right, as it pertains to individuals' ability to make decisions crucial to their pursuit of happiness, including matters of belief and faith.
• LGBTQ Community's Entitlement to Constitutional Rights (Navtej Singh Johar and others v. Union of India 2018):
• The Supreme Court ruled that members of the LGBTQ community "are entitled, just like all other citizens, to the complete spectrum of constitutional rights, including the liberties protected by the Constitution."
• They have the right to equal citizenship and "equal protection of the law.

What are the Arguments Supporting Same-Sex Marriage?

• Equal Rights and Protection Under the Law: Every person, regardless of their sexual orientation, has the fundamental right to marry and build a family.
• Parity in Legal Rights: Same-sex couples should enjoy the same legal rights and safeguards as heterosexual couples.
• Combating Discrimination: The non-recognition of same-sex marriage constitutes discrimination that undermines the dignity of LGBTQIA+ couples.
• Strengthening Families and Communities: Marriage offers social and economic advantages to couples and their families, which are equally valuable to same-sex couples.
• Cohabitation as a Fundamental Right: The Chief Justice of India (CJI) has recognized cohabitation as a fundamental right, emphasizing the government's responsibility to legally acknowledge the societal significance of such relationships.
• Challenging Absolute Biological Gender: The Supreme Court of India acknowledges that biological gender is not an absolute concept and that gender is more intricate than merely one's physical characteristics.
• The understanding of a man or woman is not fixed.
• Global Acceptance: Same-sex marriage is legally recognized in many countries worldwide.
• Denying this right to individuals in a democratic society contradicts global principles. Notably, same-sex marriage is legal in 32 countries.

What are the Arguments Opposing Same-Sex Marriage?

• Religious and Cultural Beliefs: Many religious and cultural communities uphold the belief that marriage should exclusively involve a man and a woman.
• They contend that altering the traditional definition of marriage would contradict their fundamental religious and cultural principles.
• Procreation: Some argue that the primary purpose of marriage is procreation, and same-sex couples are unable to have biological children.
• Consequently, they believe that permitting same-sex marriage contradicts the natural order of reproduction.
• Legal Concerns: There are apprehensions that legal issues may arise if same-sex marriage is allowed, including complications related to inheritance, taxation, and property rights.
• Some argue that modifying existing laws and regulations to accommodate same-sex marriage would be overly complex.
• Adoption Challenges: When queer couples adopt children, it can lead to societal stigma, discrimination, and potential negative effects on the emotional and psychological well-being of the child.
• This is particularly relevant in Indian society, where universal acceptance of the LGBTQIA+ community is not yet achieved.

What Can Be the Way Forward?

• Promoting Awareness: Conduct awareness campaigns to foster equality and acceptance of all sexual orientations, broadening public understanding of the LGBTQIA+ community.
• Legal Reforms: Consider amending the Special Marriage Act of 1954 to permit same-sex couples to legally marry and access the same rights and privileges as heterosexual couples.
  • In the interim, establishing contract-like agreements can provide similar rights for LGBTQIA+ individuals.
• Dialogue and Engagement: Initiate conversations with religious leaders and communities to bridge the gap between traditional beliefs and contemporary attitudes regarding same-sex relationships.
• Legal Challenges: The Indian LGBTQIA+ community can legally challenge the constitutionality of existing laws that prohibit same-sex marriage.
  • Such challenges can set a legal precedent, potentially leading to the legalization of same-sex marriage.
• Collaboration: Achieving the legalization of same-sex marriage necessitates a collective effort involving various stakeholders, including the LGBTQIA+ community, government, civil society, and religious leaders.
• Collaboration is key to creating a more inclusive society where everyone has the freedom to love and marry whomever they choose, regardless of their gender.

What is the Special Marriage Act (SMA) 1954?

In India, all marriages can be registered under their respective personal laws, such as the Hindu Marriage Act, 1955, or the Muslim Marriage Act, 1954. Alternatively, couples can choose the Special Marriage Act, 1954, for their marriage registration, ensuring the protection of the rights of both partners.

About:

• The Special Marriage Act, 1954, is legislation enacted by the Parliament of India that provides for civil marriages, open to Indian citizens and nationals abroad, regardless of their religious or faith affiliations.
• This act enables individuals from diverse religious backgrounds to unite in matrimony and outlines the procedures for both solemnizing and registering the marriage.

Key Provisions:

• Advance Notice to the Marriage Officer: Couples are required to provide a notice to the Marriage Officer, along with the necessary documents, 30 days prior to the intended wedding date.
• Registration Process: After the submission of documents, both parties must be present for the issuance of a public notice, inviting objections.
• The registration takes place 30 days after the notice date, following the resolution of any objections that may have arisen during that period, overseen by the Sub-Divisional Magistrate (SDM).
• Presence of Parties and Witnesses: On the registration day, both parties, along with three witnesses, must be present to complete the marriage registration process.