Why did SC not allow same-­sex marriage

General Studies Paper 2

Context:

• Recently in 2023, a Constitution Bench of the Supreme Court (SC) declined to legalise same­-sex marriage, leaving it to Parliament to legislate on the subject.

What did the petitioners want?

• The petitioners had sought a ruling by which the Special Marriage Act (SMA), 1954, which provides for a civil marriage for couples who cannot marry under their personal law, should be interpreted as gender neutral, thus allowing same-­sex couples to marry under it.
• The SMA, they argued violated Articles 14, 15, 19, 21 and 25 by not allowing marriage between same-­sex, gender non-­conforming, LBGTQIA+ couples. They sought that the words “husband” and “wife” as well as any other gender­-specific term to be substituted by the word “party” or “spouse”.

The verdict:

• The Bench ruled that there is no fundamental right to marry, and the court cannot intervene. Though all five judges accepted that it was time to end discrimination against same­-sex couples, they failed to reach a consensus on giving queer couples the status of a legally recognised “civil union,” with a majority of three judges holding that any legal status to such a union can only be through enacted law.
• Supreme Court (SC) said it could not issue a mandamus writ to Parliament; it determined the scope and effect of certain fundamental rights, and then ruled that the Constitution does not recognise marriage as a fundamental right.

The minority opinion

• It included the opinion of Chief Justice of India (CJI), which said that the LGBTQIA+ community had a fundamental right to form relationships and that the state was obligated to recognise and grant legal status to such unions, so that same-­sex couples could avail the material benefits provided under the law.
• Queerness is a natural phenomenon, the CJI pointed out, which the Navtej Singh Johar case (which decriminalised homosexuality under section 377 of IPC) had clarified. The judgement in the NALSA case also explored the presence of the transgender identity and other forms of queerness.
• The Court said the consequence of the judgments on NALSA and Navtej Johar is that the members of the queer community are no longer second­ class citizens. But having said that, it stopped short of legalising same-­sex marriage.

Why did SC refuse to read down the SMA?

• The Court felt that if the SMA was held void for excluding same­sex couples, it would mean going back to a time when two persons of different castes and religions could not marry.
• Second, it said that if it were to read down — or up — provisions of the SMA, meaning add or delete words, this would be venturing into the realm of the legislature, which would amount to judicial legislation. The Court in the exercise of the power of judicial review must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain.

Will the legislature be open to the idea?

• Throughout the hearings, the government held that it was against same-­sex marriage. It had also pointed out that judicial intervention would cause “complete havoc with the delicate balance of personal laws.”
• Activists and rights lawyers are not convinced whether the judiciary lobbing the issue back to the legislature will lead to any change. The Court has said the state must take “remedial action” because if it regulates marriage only for heterosexual couples, it “adversely impacts” the LGBTQIA+ community, resulting in their exclusion, and “denial of entitlements/benefits,” and that “this injustice and inequity results in discrimination.”

Way forward:

• The Court has set down a set of guidelines, from setting up a committee chaired by the Cabinet Secretary for the purpose of defining the scope of entitlements of queer couples who are in unions, to directing police stations to not harass the community.
• The Court said the state may choose from a number of policy outcomes: they may make all marriage and family related laws gender neutral, or they may create a separate SMA-­like statute in gender neutral terms. They may pass an Act creating civil unions, or a domestic partnership legislation, among many other alternatives.