SC refuses to legalise gay marriage, says jurisdiction lies with legislature

The Supreme Court in a unanimous decision on Tuesday refused to legalise same-sex marriage in India and said that the parliament must decide on the issue. Reasoning that the Right to Marriage was not a fundamental right, the five-judge Constitution bench, including Chief Justice of India DY Chandrachud, ruled that gay marriage could not be legalised in the country.

The petitions were heard by a five-judge Constitution bench, including Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli and Justice PS Narasimha, which delivered four judgments. The bench gave a 3:2 judgment on the question of adoption rights to queer couples. Chief Justice of India DY Chandrachud and Justice SK Kaul recognised the right of queer couples to adopt, while Justice S Ravindra Bhat, Justice PS Narasimha and Justice Hima Kohli disagreed.

The judges, however, asked the Centre to proceed with the formation of a committee to address the concerns of same sex couples: 

• Getting ration cards
• Pension
• PF
• Gratuity
• Succession issues 

The top court's verdict came after it reserved its judgment on a batch of pleas seeking legal validation for same-sex marriage on May 11, 2023.

Notably, the Supreme Court in 2014 recognised transgender people as the "third gender". Later, in 2018, the top court struck down the colonial-era law and decriminalised homosexuality. 

CJI sends directions on queer community petitions

CJI DY Chandrachud made some remarkable comments during the hearing of the case on Tuesday. Addressing the Centre, the CJI clearly asserted that the central government should take steps to ensure that the queer community should not be discriminated in the country.

The CJI, while taking note of the petitioners, wherein they cited the violence and discrimination faced by queer community, directed the Centre, the States and the Union Territories governments:

• To ensure that the queer community is not discriminated against in the country.
• To ensure no discrimination in supply of goods and services, sensitise the public to prevent harassment of any kind.
• To establish safe houses in all areas for the queer community.
• To ensure a hotline is established for the queer community and the police shall ensure that no queer person is harassed to ascertain gender identity and when a police complaint is filed by a queer couple, after verification, due protection to be granted.
• To ensure that there should be no discrimination with the queer community in their access to goods and services across the country.
• To ensure that inter-sex children are not forced to undergo sex change operations till they are not of age to comprehend the effect of such procedures.
• To ensure that no person shall undergo hormonal therapy as a precondition to be able to be recognised as a queer person.

Same-sex marriage: Timeline of the case

November 25, 2022: Two gay couples moved the SC seeking recognition of same-sex marriage under the Special Marriage Act.

December 14, 2022: SC issued notice in another plea filed by a same-sex couple. The married couple, including one Indian national and one US citizen, sought legal recognition of their marriage under the Foreign Marriage Act, 1969.

January-March 2023: The Supreme Court issued notices on more petitions filed seeking similar relief and tagged them with the main case.

March 12, 2023: The Centre filed an affidavit before the top court opposing same-sex marriages and argued that the concept of an Indian family involves a biological man and woman. It further stated that it won’t be possible for the court to change the legislative policies of the country that was deeply embedded in religious and societal norms.

April 6: The Delhi Commission for Protection of Child Rights (DCPCR) filed an intervention application, supporting same-sex marriages and the right of same-sex couples to adoption. This came after the Jamiat Ulama-I- Hind in April 2023 opposed the pleas seeking legal recognition of same-sex marriages. 

April 15, 2023: The Supreme Court notified that the five-judge bench will hear the batch of petitions. 

April 17, 2023: The Centre filed a new application and questioned the maintainability of the batch of pleas seeking same-sex marriages in India. 

April 18: A five-judge Constitution Bench heard the pleas to decide whether same-sex marriage should be legalised in India. 

May 11, 2023: A five-judge constitution bench headed by Chief Justice D Y Chandrachud reserved its verdict on the pleas after a marathon hearing of 10 days. 

October 17, 2023: The Supreme Court delivered its much-anticipated judgment on pleas seeking legal validation for same-sex marriage, refusing to legalise it.