The Final Verdict: SC Refuses to Give Marriage Equality
Image Source: LiveLaw
On September 6th, 2018, the five-judge Bench partially struck down Section 377 of the Indian Penal Code, decriminalising same-sex relations between consenting adults. However, the fight of the LGBTQ+ community was far from over.
The Supreme Court pronounced its verdict on the legal recognition of same-sex marriage today, on October 17. The apex court had reserved its judgment on May 11 on a batch of pleas seeking legal validation for same-sex marriage. The five-judge Constitution bench that was hearing the pleas comprised Chief Justice DY Chandrachud and Justices SK Kaul, SR Bhat, Hima Kohli, and PS Narasimha.
During the course of hearings, the petitioners said that “India is a marriage-based culture” and that LGBTQ+ (lesbian, gay, bisexual, and transgender) couples should be granted the same rights as any heterosexual couples have, like the status of “spouse” in finance and insurance issues; medical, inheritance, and succession decisions; and even in adoption and surrogacy matters. A five-judge Constitution Bench of the apex court, headed by Chief Justice of India D. Y. Chandrachud, ruled in a 3:2 verdict against giving constitutional validity to same-sex marriages. The top court said it is for Parliament to formulate legislation on it.
The CJI added that the SC cannot strike down the provisions of the Special Marriage Act (SMA) or read words differently. The focus of the petitions filed is the gender-neutral interpretation of the SMA. It is a secular legislation designed to facilitate inter-caste and inter-faith marriages. The petitioners have sought a broader interpretation of the SMA to include same-sex marriages too. The Narendra Modi-led central government has publicly shown disdain over the appeal, calling it “urban elitist views.” The government argues that matters related to LGBT rights should be addressed through the democratic process of Parliament rather than being decided by the judiciary. The government has also said that same-sex marriages are not “comparable with the Indian family unit concept of a husband, a wife, and children.”
The Supreme Court’s rejection of the appeal has come as a huge surprise to the LGBTQIA+ community since the appeal was a small step towards their equality and inclusivity in the country. However, it declared queer couples have the right to cohabit without any threat of violence, coercion, or interference.
Three of the five judges ruled that there cannot be a right to form civil unions. By the same majority, the court also held that non-heterosexual couples cannot be granted the right to jointly adopt a child.
CJI directs the Centre and State governments to ensure that there is no discrimination in access to goods and services for the queer community and the government to sensitize the public about queer rights. The government is to create a hotline for the queer community, create safe houses ‘Garima Grih’ for queer couples who face violence, and ensure intersex children are not forced to undergo operations.
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- News Writer
- Isha Tripathi is a 5th-year law student. Being a law student, her primary writing focus has always been on society, mental health, and various legal aspects, but she is always open to other areas of writing. She has also completed two internships as a content writer. In addition to this, she has written various blogs, articles, etc.
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