India Supreme Court rules against legalizing same-sex marriages – JURIST

The India Supreme Court on Tuesday held that there is no fundamental right for same-sex couples to get married. A five-judge bench of the court, headed by the Chief Justice of India Dhananjaya Yeshwant Chandrachud, ruled against recognizing same-sex marriages, as well as civil unions for non-heterosexual couples in India in a 3-2 verdict. Earlier this year, the court decided to form a special constitutional bench of five judges to consider a series of petitions related to same-sex marriages in the country.

After a hearing that stretched over 10 days in April to May of this year, the petitioners argued that the right to marry, both for heterosexual and non-heterosexual couples, is implicit in the Constitution of India under various articles that are recognized as fundamental rights. Fundamental Rights are the the basic human rights enshrined in the Constitution of India which enjoy special protection from government encroachment. The petitioners had argued that non-recognition of same-sex marriages is violative of Article 14 (equality), article 15 (non-discrimination), article 19 (freedom of speech) and article 21 (right to life).The petitioners cited judgements such as Navtej Singh Johar v. Union of India, which decriminalised same sex relationships, and K.S Puttuswamy v. Union of India, which upheld the fundamental right to privacy, to back their claims.

While the minority opinion differed from the majority on the issue of recognizing civil unions for non-heterosexual couples, the bench unanimously held that there is no fundamental right to marry. Consequently, any decision regarding same-sex marriage falls within the domain of the legislature. During the hearing, the petitioners requested that the Special Marriage Act, 1954, a secular legislation designed to facilitate inter-caste and inter-faith marriages, should be reworded to read marriage as between spouses instead of “man and woman.” The court ruled against it and said it cannot strike down or reword the provisions of the act due to limitations on the court’s powers. While the minority opinion by the Chief Justice and Justice Sanjay Kishan Kaul was in favor of a state-recognized union of non-heterosexual couples with the person of their choice, the same was outweighed by the majority opinion which outrightly ruled against any kind of legal non-heterosexual union. Further, the minority judgement found Regulation 5(3) of the Central Adoption Resource Authority Regulations to be in violation of Article 15 of the constitution as it prohibited unmarried and queer couples from adopting children.

Justice Ravindra Bhat, speaking for the majority, asked the Union to form a High Powered Committee to examine queer concerns and policy changes that come along, while ruling against civil unions for non-heterosexual couples. Putting the ball again in the legislature’s court, Justice Bhat said that “All queer persons have the right to choose their partners. But the State cannot be obligated to recognize the bouquet of rights flowing from such a Union.” He also disagreed with the minority on the issue of adoption, disallowing non-heterosexual couples to jointly adopt.