Supreme Court refuses to grant legal recognition for same-sex and queer marriages with a 3:2 majority

The Constitution bench of the Supreme Court delivered the much-awaited decision on legal validation of same-sex and queer marriages today. The bench refused to grant legal recognition for same-sex and queer marriages in India as well as declined the right of adoption to queer couples by a 3:2 majority. Four different opinions have been expressed by the Constitution bench written by Chief Justice of India DY Chandrachud, Justice Hima Kohli, Justice S Ravindra Bhat, Justice PS Narasimha, and Justice Sanjay Kishan Kaul. The important takeaways from the judgment include:

• The bench with a 3:2 majority, CJI and Justice Kaul being the minority, declined to allow civil unions for non-heterosexual couples.
• All five judges of the Constitution bench agreed that there is no fundamental right to marry under the Indian Constitution.
• In a unanimous ruling, all five judges agreed that the Special Marriage Act, 1954 cannot be amended to permit same-sex marriages by using gender-neutral language.
• All five judges agreed to the Centre’s stand that a cabinet committee will be constituted to look into rights that can be conferred on non-heterosexual couples including opening joint bank accounts, etc. 
• The bench with a 3:2 majority where Justices Bhat, Kohli, and Narasimha does not agree with CJI and Justice Kaul regarding the adoption aspects. 

During the court proceedings, the CJI while reiterating that it was up to Parliament to decide whether to expand marriage laws and include queer unions, said, “This court can’t make law. It can only interpret it and give effect to it”. In this context, Mario da Penha, one of the petitioners said it was ‘a day to be disappointed but not to lose hope’. After hearing all the contentions of the petitioners and others, the bench delivered the judgment that refuse to grant legal recognition for same-sex and queer marriages in India. In Asia, Taiwan became the first jurisdiction in May to recognize same-sex marriages, and an interim order was issued by Nepal’s Supreme Court in July enabling the registration of same-sex marriages.  

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