In a recent landmark case, a Supreme Court Bench led by Chief Justice DY Chandrachud, along with Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, has declined to grant legal recognition to same-sex marriages in India. The Court concluded that this issue falls within the purview of the legislature. Additionally, the Bench has proposed the establishment of a committee by the State to examine the rights and entitlements of individuals in queer unions. Solicitor General Tushar Mehta represented the State in this case.
The case at hand involved a series of writ petitions aimed at securing legal recognition and validation of same-sex marriages. The Bench delivered four separate judgments, with the majority opinion articulated by Justices Bhat, Kohli, and Narasimha, while the minority opinion was presented by Chief Justice Chandrachud and Justice Kaul.
Chief Justice DY Chandrachud’s Judgment: Justice Chandrachud emphasized that queerness is a natural phenomenon with roots in ancient India, not limited to urban or elite circles. It was held that unmarried couples, including queer couples, can jointly adopt a child. However, the Court also highlighted that there is no universal concept of the institution of marriage, and it is not static. Therefore, the power to enact laws recognizing and regulating queer marriage lies with Parliament and state legislatures under Articles 245 and 246 of the Constitution, read with Entry 5 of List III to the Seventh Schedule.
The Court urged that the judiciary should avoid matters that fall within the legislative domain, particularly those impacting policy. Thus, it refused to strike down the constitutional validity of the Special Marriage Act or add provisions to it. Instead, it recommended that the State has an obligation to recognize same-sex unions and grant them benefits under the law. This obligation is rooted in the freedom of all individuals, including queer couples, to enter into a union, protected by Part III of the Constitution.
Justice Sanjay Kishan Kaul’s Judgment: Justice Kaul concurred with Chief Justice Chandrachud’s judgment. He noted that legal recognition of non-heterosexual unions represents a step toward marriage equality. However, he also emphasized that marriage is not an end in itself and that the Constitution supports equality in all aspects of life. Justice Kaul underlined the importance of respecting the autonomy and choices of non-heterosexual couples as long as these choices do not infringe on the rights of others, concluding with a quote from the Bon Jovi song “It’s My Life.”
Justice S Ravindra Bhat’s & Justice Hima Kohli’s Judgment: Justices Bhat and Kohli stressed that the right to marriage is unqualified, except as recognized by statute or left open by custom. They emphasized that legal recognition of the right to a union similar to marriage or civil union can only be established through enacted law, and the Court cannot create such a framework. The challenge to the Special Marriage Act was rejected.
The Bench directed the Union to establish a high-powered committee to examine various factors affecting queer couples, including employment benefits, insurance, and other entitlements. The Court acknowledged the feelings of exclusion experienced by the queer community but stated that addressing their concerns requires a comprehensive study, a multidisciplinary approach, and a polycentric resolution, beyond the scope of the Court.
Regarding adoption rights for unmarried couples, the Court recognized the impact on children of individuals in de facto families but refrained from invalidating the relevant provisions, leaving it to the State to address these issues.
Justice PS Narasimha’s Judgment: Justice Narasimha concurred with Justice Bhat’s judgment and dissented from the observations of Chief Justice Chandrachud. He emphasized that while the benefits of marriage are fundamental to a fulfilling life, marriage itself is not a fundamental right. Instead, the right to an abiding cohabitation union is fundamental. Justice Narasimha believed that a comprehensive review of legislative frameworks and their impact on benefits requires a deliberative and consultative exercise, which is the responsibility of the legislature and the executive.
The case was titled “Supriyo @ Supriya Chakraborty & Anr. v. Union of India [2023 INSC 920