A majority view on a five-judge Constitution Bench which decided the same-sex marriage case held on October 17 that non-heterosexual couples cannot claim an unqualified right to marry.
Though all five judges agreed that homosexuality was neither an urban nor elitist concept, they differed on the point whether the court can obligate the State to formally recognise the relationship of queer couples by giving it the legal status of a “civil union” or “marriage.
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.
The minority views of the two judges held that the right to enter into a union cannot be restricted on the basis of sexual orientation. Discrimination on the basis of sexual orientation is violative of Article 15 of the Constitution, the Chief Justice said.
The majority views of Justices S.R. Bhat, Hima Kohli and P.S. Narasimha disagreed on the point, holding that it was for the legislature, and not the Court, to formally recognise and grant legal status to non-heterosexual relationships.
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.
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Chief Justice D.Y. Chandrachud concluded, in his opinion, that the court could neither strike down or read words into the Special Marriage Act to include same-sex members within the ambit of the 1954 law. Justice Kaul agreed that disturbing the Act, which facilitates inter-faith marriages, would have a cascading impact on other laws and the rights of others. The court was of the view that it was for the Parliament and State legislature to enact laws on marriage.
In his opinion, Chief Justice Chandrachud said the relationship of marriage was not a static one. He held that queer persons have an equal right and freedom to enter into a “union”. He said the failure of the State to recognise the bouquet of entitlements which flow from a union would result in a disparate impact on queer couples, who cannot marry under the current legal regime.
Justice Kaul said heterosexual unions and non-heterosexual unions were two sides of the same coin. He said an “edifice” should be created to recognise the civil union of same sex partners and statutes should be interpreted in consonance with their right to enter into such unions.
“Non-heterosexual unions are entitled to protection under a constitutional scheme… There is a necessity to recognise civil unions,” Justice Kaul said.
Justice Kaul observed that the legal recognition of such unions was a step forward towards “marriage equality”.
“Practice of equality necessitates protection of individual choices. The capacity of same sex couples for love is no less worthy to protect than that of heterosexual couples,” Justice Kaul noted.
The view jointly authored by Justices S.R. Bhat and Hima Kohli, backed by a separate but concurring opinion by Justice P.S. Narasimha, said the court cannot give formal recognition to same-sex relationships by coining them as “civil unions”. The court cannot initiate the construction of a “parallel framework” of the institution of marriage. Such a recognition was not based on law. Justice Bhat disagreed with the Chief Justice’s interpretation that the right to form a civil union by same sex couples flowed from their right to choose a partner, right to life and free expression.
Justice Bhat said there was no fundamental right to marry. The right was regulated by enacted laws and legally enforceable customs. Framing a new code for legally recognised same-sex unions was the task of the legislature and not the court.
Justice Bhat said the court empathised with the desire of the LGBTQIA+ community for social acceptance and respect, but the means to arrive at that end must be legally sound, otherwise it may initiate untold consequences.
“There is no unqualified right to marry except by statutes… the court cannot create a regulatory framework resulting in legal status,” Justices Bhat and Kohli held.
However, these limitations on providing a legal status to same-sex relationships did not preclude partners from “celebrating their commitment to each other in whichever way they wish within the social realm”.
Justice Bhat held that the apex court’s judgment decriminalising homosexuality did not automatically extend to claiming legal entitlements or legal status to same-sex unions.
Justice Narasimha, in his opinion endorsing Justice Bhat’s views, said the right to marry was a statutory right and not a constitutional right as the Chief Justice had held.
“The right to marry flows from legally enforceable customary practices,” Justice Narasimha said. He noted that a legally enforceable right to a civil union or legal status to an “abiding cohabitational relationship” by queer couples cannot be squeezed into the Fundamental Rights chapter of the Constitution.
The Bench nevertheless unanimously agreed that same sex couples face discrimination and harassment in their daily lives. The court urged the government to form a high-powered committee chaired by the Union Cabinet Committee to expeditiously look into genuine human concerns faced by same-sex partners.
The Chief Justice suggested that the committee should look into whether queer couples could be treated as members of the same family for the purpose of ration card; succession; maintenance; opening of a joint bank account; arrangement of last rites of partners; access benefits of rights and benefits of employment, etc.