The Supreme Court of India on October 17 in a majority view held that homosexual couples cannot claim an unqualified right to marry. Justices S.R. Bhat, Hima Kohli and P.S. Narasimha held that it was for the legislature, and not the Court, to formally recognise and grant legal status to non-heterosexual relationships.
The minority views of Chief Justice D.Y. Chandrachud and Justice Sanjay Kishan Kaul held that constitutional authorities should carve out a regulatory framework to recognise the civil union of adults in a same-sex relationship. But all the five judges on the Bench agreed that the Special Marriage Act of 1954 was not unconstitutional for excluding same-sex marriages. They said that tinkering with the Special Marriage Act of 1954 to bring same-sex unions within its ambit would not be advisable.
The court heard a series of petitions seeking solemnisation of same-sex marriage under the Special Marriage Act. The Special Marriage Act of 1954 provides a civil form of marriage for couples who cannot marry under their personal law.
During the course of the hearing the government had stiffly objected to the idea of a judicial declaration giving legal status to same-sex relationships, saying that would result in confusion and encroach into the legislative domain. In its submission to the Supreme Court, the BJP-led government called this petition, a voicing of “urban elitist views”.
The main petitioners of the case, Supriyo and Abhay Dang, argued that the non-recognition of same-sex marriage amounts to discrimination that strikes at the root of dignity and self-fulfillment of LGBTQIA+ couples. The petitioners argued that the court need not wait for the Parliament to legislate to fill up a vacuum. The provisions of the Special Marriage Act, insofar as they do not recognise same-sex marriages, were unconstitutional. The court could act as the ‘north star’.
