The Supreme Court’s recent decision on October 17 left the LGBTQ+ community in India with mixed feelings. In a unanimous verdict, a five-judge constitution bench ruled against granting legal recognition to same-sex marriage. The SC cites that it is up to the legislature to draft a law on this matter. This decision sparked much debate, but let’s break it down without the legal jargon and fluff. Here’s what you need to know.
Is Right to Marry a Fundamental Right?
The Supreme Court firmly stated that there is no fundamental right to marry in the Indian Constitution. This was the core reason behind their refusal to recognize same-sex unions. However, it’s important to understand that this decision wasn’t rooted in a fundamental disagreement with marriage equality. Instead, it was driven by legal complexities and concerns about judicial legislation.
Differing Views on Adoption
Within the panel of judges, there were differing opinions. Four of the five judges wrote individual opinions. The majority opinion, represented by Justices S Ravindra Bhat, Hima Kohli, and PS Narasimha, was against extending civil union rights to same-sex couples. In contrast, Chief Justice DY Chandrachud and Justice Sanjay Kishan Kaul expressed a minority opinion in favor of granting civil union rights to same-sex couples. A civil union would provide legal recognition to same-sex partnerships, even if it’s not the same as marriage in personal law
Acknowledgement of ‘Civil Union’ Rights
CJI and Justice Kaul supported the scope of Civil Union to couples of the same gender. The term ‘civil union’ pertains to the legal status that grants same-sex couples the same privileges and obligations as married couples. Although a civil union looks like a marriage, it does not have exactly the same status in personal law as marriage.
5 Key Takeaways from the Judgement:
Here are five key takeaways from the Supreme Court’s verdict:
1. Fundamental Right to Marry: All five judges, including the Chief Justice and Justice Kaul, agreed that there is no fundamental right to marry under the Constitution.
2. Special Marriage Act, 1954: The judges unanimously agreed that changing the Special Marriage Act, 1954 to allow same-sex marriage through gender-neutral language was not feasible. This was a major point of contention among the petitioners.
3. Minority and Majority Opinions: Four of the five judges wrote individual opinions. While the majority view was against extending civil union to same-sex couples, the Chief Justice and Justice Kaul expressed a minority opinion in favor of it.
4. Rights for Same-Sex Couples: All five judges acknowledged the need to consider rights for non-heterosexual couples. This could include joint bank accounts, provident fund beneficiaries, and inheritance rights, among others.
5. Adoption Guidelines: The minority view, represented by the Chief Justice and Justice Kaul, struck down specific guidelines by the Central Adoption Resource Authority (CARA) that restricted same-sex and unmarried couples from jointly adopting children.
The Chief Justice argued that it’s discriminatory to assume that only married, heterosexual couples can provide a safe environment for raising children.
While the Supreme Court’s decision did not legalize same-sex marriages, it did raise crucial questions about equality and the rights of the LGBTQ+ community in India. The division among the judges highlights the complexity of the issue, and it is clear that the fight for LGBTQ+ rights is far from over. It remains to be seen how the government and society will respond to these important legal and social questions in the future.