SC declines to legalise same-sex marriage

• A five-judge Bench of the Supreme Court declined to legalise same-sex marriage, placing it upon the Parliament and State governments to decide if non-heterosexual unions can be legally recognised.

Important points

• The judgment has refused to recognise queer marriages or civil unions.
• Marriage, according to the court, is an institution set up under law — and same-sex couples do not have a right to participate in it unless the law permits them to do so. The fact that it does not permit them at this moment, according to the court, is not unconstitutional.
• The Special Marriage Act, 1954 — a legislation that was enacted to enable inter-faith marriages, and the challenge against which formed the foundation of the hearings — was upheld in its current form, i.e., permitting marriages only between a ‘man’ and a ‘woman’.
• The verdict poses the marriage equality question for the legislature. In the absence of any central law, the judgment holds that State legislatures can enact laws recognising and regulating same-sex marriages; the Constitution under Articles 245 and 246 empowers both the Parliament and the State to enact marriage regulations.
• Court cannot mandate the state to recognize a civil union.
  • A “civil union” refers to legal status that allows same sex couples specific rights and responsibilities normally conferred upon married couples.
• Since a same-sex couple cannot marry under Indian law, it follows that they cannot also adopt children as a couple.

JUDGEMENTS RELATED TO LGBTQ RIGHTS IN INDIA

• Suresh Koushal v Union of India– upheld the constitutional validity of Section 377 of the Indian Penal Code.
• Navtej Johar v Union of India– struck down IPC Section 377 to the extent that it criminalised homosexuality.
• NALSA v Union of India– upheld the right of transgender persons to decide their gender and directed the Centre and state governments to grant legal recognition to their gender identity
• KS Puttaswamy v Union of India– recognised the right to privacy as a fundamental right under the Constitution.
• Shafin Jahan v Union of India– recognised the right to choose one’s partner as a facet of the fundamental right to liberty and dignity.