SC Refuses to Legalise Marriage Equality, 2 of 5 Judges Say Queer Couples Must Be Given Legal Rights

The proposition that queer couples could adopt children was also struck down, 3:2.

New Delhi: The Supreme Court on Tuesday (October 17) delivered its judgment in the marriage equality case. The court was in agreement that marriage equality overall must be decided by parliament and cannot be brought in by the court.

In his judgment, Chief Justice of India D.Y. Chandrachud said that whether marriage equality is legalised is something parliament must decide on, and it is not within the court’s remit to create new laws.

He also went on to say that the state must recognise queer unions, even without marriage, and provide legal safeguards and rights to them. Justice Sanjay Kishan Kaul agreed with this opinion.

However, the other three judges on the bench did not agree with this directive.

The bench comprised Chief Justice of India D.Y. Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli and Justice P.S. Narasimha. A total of four judgments were delivered, with “a degree of agreement and a degree of disagreement,” the CJI said.

During the hearing, the bench has confined the case to the Special Marriage Act 1954 and clarified that it will not deal with the Hindu Marriage Act or personal laws.

The four judgements today have a bearing on the ability of queer couples adopt children. While the chief justice DY Chandrachud and the second senior-most judge on the bench, Justice Sanjay Kishan Kaul held that the Central Adoption Resource Authority (CARA) had exceeded its authority in barring unmarried and queer couples from adopting children, their three colleagues on the bench did not agree with them. As a result, the proposition that queer persons could adopt children was struck down, 3:2.

The bench was looking at the legality of Regulation 5(3) of the CARA Regulations for adoption. Regulation 5 lays down the criteria for those adults who wish to adopt children.

‘Queerness is not urban or elite’: CJI Chandrachud

CJI Chandrachud said that his judgment dealt with the issue of judicial review and separation of powers. Queer people exist across all communities and settlements, urban or rural, he said. “The Constitution demands this Court protects the fundamental rights of citizens. Doctrine of separation of powers does not come in the way of this Court issuing directions for the protection of fundamental rights,” according to Justice Chandrachud.

“Queerness is not urban or elite,” Justice Chandrachud has titled one section of his judgment. “It is not an English speaking man with a white collar man who can claim to be queer but equally a woman working in an agricultural job in a village,” he said. “…Queerness can be regardless of one’s caste or class or socio-economic status.”

The judge was responding to the Union government’s argument in court that this issue only pertains to the urban elite.

Marriage is not static, the CJI said in his order. “Withdrawal of the State from the domestic space leaves the vulnerable party unprotected. Thus all intimate activities within private space cannot be said to be beyond State’s scrutiny,” he said.

The judge then questioned whether the court could strike down Section 4 of the Special Marriage Act. “If in the present batch of petitions, this Court holds that Sec 4 of Special Marriage Act is unconstitutional because of being under-inclusive, it has to either strike it down or read it down,” CJI Chandrachud said.

“If Special Marriage Act is struck down, it will take the country to pre-independence era. If the Court takes the second approach and reads words into the SMA, it will be taking up the role of legislature,” he continued. “The court is not equipped to undertake such an exercise of reading meaning into the statute. Whether a change in the regime of the Special Marriage Act is for the Parliament to decide. ”

“The right to enter into a union includes the right to choose one’s partner and the right to recognition of that union,” Justice Chandrachud said, adding that if such queer associations are not recognised, it can thwart freedoms.

“Choosing a life partner is an integral part of choosing one’s course of life. Some may regard this as the most important decision of their life. This right goes to the root of the right to life and liberty under Article 21.”

“This court has recognised that queer persons cannot be discriminated upon. Material benefits and services flowing to heterosexual couples and denied to queer couples will be a violation of their fundamental right,” Justice Chandrachud said.

He also talked about adoption laws and said there is no evidence that only married heterosexual couples can make for good parents. ” CARA Regulation 5(3) indirectly discriminates against atypical unions. A queer person can adopt only in an individual capacity. This has the effect of reinforcing the discrimination against queer community,” he said. “…The CARA circular (which excludes queer couples from adoption) is violative of Article 15 of the Constitution.”

Justice Chandrachud said he had a disagreement with parts of Justice Bhat’s judgment. “Contrary to Justice Bhat’s judgment, directions in my judgment does not result in the creation of an institution, rather they give effect to the fundamental rights under Part 3 of the Constitution,” the CJI said.

The CJI then read out the directions he was issuing. These include creating hotlines and safe houses for queer couples and spreading awareness about how queerness is natural, and ordering the police not to harass queer people by unnecessarily summoning them to police stations.

Towards the end of his judgment, Justice Chandrachud said that the Supreme Court could not change or re-read the Special Marriage Act to allow for marriage equality, as that falls in the remit of parliament. However, he argued that the “failure of the state to recognise the bouquet of rights flowing from a queer relationship amounts to discrimination”.

“Right to enter into union cannot be restricted on the basis of sexual orientation,” he added.

“We record the statement of the Solicitor General that the Union Government will constitute a committee to decide the rights and entitlements of persons in queer unions,” he said. The committee, he said, shall consider including queer couples as family in ration cards, enabling queer couples to name each other as nominees in bank accounts, etc.

Necessary to recognise civil unions: Justice S.K. Kaul

Justice S.K. Kaul read out his judgment next.

“I agree with the judgment of CJI. It is not res integra for a constitutional court to uphold the rights and the court has been guided by the constitutional morality and not social morality. These [queer] unions are to be recognised as a union to give partnership and love,” Justice Kaul.

Justice Kaul said he disagreed with Justice Bhat’s claim that the SMA was passed solely to allow for heterosexual marriages.

“Non-heterosexual unions and heterosexual unions must be seen as both sides of the same coin,” Justice Kaul said. “This moment is an opportunity to remedy the historical injustice and discrimination and thus governance needed to grant rights to such unions or marriages.”

He also supported the CJI’s call for an anti-discrimination law.

“Legal recognition of non-heterosexual unions is a step towards marriage equality,” Justice Kaul said.

Court can’t ask state to create legal status for queer couples: Justice Ravindra Bhat and Hima S. Kohli

Justice Ravindra Bhat then read out the judgment signed by him and Justice Hima Kohli. While they agreed with much of what the CJI had said, Justice Bhat said the two disagreed when it came to the directives. They said they agreed with Justice Narasimha’s concurring judgment.

Justice Bhat said that over time the institution of marriage has gone through several reforms.

“We do not particularly subscribe to the views of CJI on democratising intimate spaces…these outcomes were brought by legislative acts,” he said. While courts have intervened several times when queer people have faced violence, that is part of the state’s duty to protect citizens.

“This court has recognised that marriage is a social institution. Marriage as an institution precedes the state. This implies that marriage structure exists regardless of the state. Terms of marriage are independent of the state, and its sources are external,” Justice Bhat said.

The court, Justice Bhat said, cannot require the state to create legal status for queer couples.

“We agree that there is a right to relationship, we squarely recognise that it falls within Article 21. It includes the right to choose a partner and intimacy. They are like all citizens entitled to enjoy their right without hindrance,” he said. However, he continued that the court cannot provide relief in matters pertaining to the creation or change in a social institution (marriage).

“There cannot be an unqualified right to marry which is to be treated as a fundamental right,” Justice Bhat said – something the CJI too had pointed out.

Two consenting adults may always choose to live together and be intimate, the judge said, despite whatever others may say. They also have the right to be protected from violence when living in that way, and the right to live with dignity.

“There are difficulties in creating through a judicial diktat a right to civil union,” Justice Bhat said. The court cannot create a legal framework for queer couples and it is for the legislature to do so, he continued.

“All queer persons have the right to choose their partners. But the state cannot be obligated to recognise the bouquet of rights flowing from such a Union. We disagree with the CJI on this aspect,” Justice Bhat said.

He added that the SMA cannot be read in a gender-neutral manner, as that would lead to unseen consequences and could be detrimental for women.

The denial of benefits such as a PF, pension and so on to queer partners may be discriminatory, Justice Bhat said. However, the solicitor general had already said that a committee would be formed to look into such required changes.

Justice Bhat also said that he disagreed with the CJI on the right of queer couples to adopt. “This is not to say that unmarried or non-heterosexual couples can’t be good parents.. ..given the objective of section 57, the state as parens patriae has to explore all areas and to ensure all benefits reach the children at large in need of stable homes,” he said.

“Conferring legal status to civil union can only be through enacted law,” Justice Bhat said in his conclusions. “But these findings will not preclude the right of queer persons to enter into relationships.”

Not constitutionally permissible to recognise a civil union: Justice P.S. Narasimha

Justice Narasimha agreed with the conclusions of Justice Bhat. The constitutional challenge to the Special Marriage Act and Foreign Marriage Act must fail for the reasons given by Justice Bhat, he said.

“A review of the impact of the legislative framework in this case requires deliberative exercise and for the same, the legislature is entrusted to do so constitutionally,” he said.


The court had reserved its order in the case on May 11.

The counsel for the petitioners had argued that the Special Marriage Act, as it stands, is discriminatory because of its exclusion of non-heterosexual couples and that this denial of access to marital institutions meant inferiority and subordination. They also said there is a duty in the Union to recognise the association of non-heterosexual couples as married couples in a non-discriminatory manner.

Solicitor General Tushar Mehta, appearing for the Union government, had opposed the petitions