Same-sex marriage: Key points from Supreme Court verdict

NEW DELHI: The Supreme Court on Tuesday delivered its much-awaited order on the issue of legality of same-sex couples.

A five-judge bench headed by the Chief Justice of India, D.Y. Chandrachud, heard arguments in the case between April and May this year and pronounced its verdict today.


Here are key points from the order:

• SC's 5-judge bench led by CJI D Y Chandrachud says there are degrees of agreement and disagreement on how far the court can go to grant right of marriage to members of LGBTQIA+ community. There are 4 judgments, one each by CJI, Justices S K Kaul, S R Bhat and P S Narasimha.
• This court can't make law. It can only interpret it and give effect to it, CJI Chandrachud says. He said if the court reads down or inserts words into Section 4 of Special Marriage Act to give marriage rights to LGBTQIA+ community members, then it would be entering into the legislative domain.
• Homosexuality or queerness is not urban concept or restricted to upper class of society. Queerness can be regardless of one's caste or class or socio-economic status, CJI said.
• CJI says without right to marry which can be given by legislature, the LGBTQIA+ community members have right to choose partner and right to intimate association and state must recognise a bouquet of their rights to enable such couples enjoy rights of association unhindered.
• CJI Chandrachud says it’s incorrect to say marriage is a static and unchanging institution. If the Special Marriage Act is struck down, it will take the country to the pre-Independence era. Whether a change in the regime of the Special Marriage Act is required is for the Parliament to decide. This Court must be careful to not enter into legislative domain, says CJI.
• CJI says if two transgender persons intend to marry, identify themselves as trans-man and trans-woman, their marriage can be registered under Special marriage Act. He said all LGBTQIA+ couples, identifying themselves as man and woman, can also marry.
• Ability to choose life partner goes to root of right to life and liberty under Article 21, says CJI Chandrachud.
• Importantly, the CJI said the circular of Central Adoption Resources Authority (CARA) prohibiting LGBTQIA+ couples from adopting a child is discriminatory and hence, unconstitutional. This means, as per his opinion, LGBTQIA community members would be able to adopt a child.
• Right to enter into union includes right to choose partner, its recognition; failure to recognise such association discriminatory. All persons, including those queer, have right to judge moral quality of their lives. This court has recognised that equality demands that queer persons are not discriminated against.
• CJI says state has a legitimate interest in regulating marriage as a social institution and that court cannot enter the legislative domain and direct it to recognise queer marriages through a legislation.
• Reading out his judgment for 45 minutes, the CJI said unmarried couples and queer couples can jointly adopt a child, a right so far denied by the circular issued by CARA.
• CJI accepts SG Tushar Mehta's proposal on behalf of the Centre for setting up of an expert panel headed by Cabinet Secretary to consider granting queer couples a buquet of rights and privileges, except right to marriage, that are available heterosexual couples.

Justice S K Kaul agrees with the CJI's views.

• He says state must ensure that queer couples faced no discrimination in accessing basic needs and societal tolerance.
• He says that giving right of marriage to queer couple by court was not possible as it is a legislative exercise.
• Justice SK Kaul says non-heterosexual and heterosexual unions must be seen as both sides of same coin
• Justice SK Kaul says Legal recognition of non-heterosexual unions is step towards marriage equality
• There is a need for an anti-discrimination law. Justice SK Kaul says after all 'It's my life' as says the song by Bon Jovi

Justice Bhat verdict

• Justice S R Bhat, who will retire on October 20, in his judgment agreed with CJI and Justice Kaul that there is no fundamental right to marry guaranteed by the Constitution, though queer couples have a right to live together unhindered and undisturbed.
• Justice Bhat disagreed with the CJI for right of adoption of queer couples.

Justice Hima Kohli verdict

Justice Hima Kohli agrees with Justice Bhat. Justice P S Narasimha in his opinion said right to marry is not a fundamental right, hence cannot be claimed as a matter of right by LGBTQIA+ community. Thus, the 5-Judge bench unanimously refuses to grant marriage rights to queer couples.