Supreme Court’s Views on Same Sex Marriage
Context:
- A Supreme Court (SC) Constitution Bench has decided not to legalise same-sex marriage in 2023, delegating the task of passing legislation to Parliament.
What were the petitioners requesting?
- The petitioners had asked the court to rule that same-sex marriages should be permitted under the Special Marriage Act (SMA), 1954, which allows civil marriages to those who are unable to wed under their own laws.
- The SMA was accused of violating Articles 14, 15, 19, 21, and 25 by prohibiting same-sex, gender non-conforming, LBGTQIA+ couples from getting married. They wanted the terms “party” or “spouse” to be used in place of any gender-specific terms, such as “husband” and “wife.”
The decision:
- The Bench decided that the court cannot get involved and that there is no basic right to marry. Despite the fact that all five judges agreed that it was time to stop discriminating against same-sex couples, they were unable to agree on whether to grant queer couples the status of a legally recognised “civil union,” with three judges holding that such a union can only have legal status through enacted law.
- The Supreme Court (SC) decided the extent and implications of numerous fundamental rights before ruling that marriage is not recognised as a fundamental right under the Constitution. The SC further stated that it could not issue a mandamus writ to Parliament.
The viewpoint of the LGBTQIA+ Community:
- It contained the Chief Justice of India’s (CJI) ruling that the LGBTQIA+ community had a fundamental right to form relationships and that the state had a duty to acknowledge and recognise these unions in order to provide same-sex couples with the material benefits guaranteed by the law.
- The CJI noted that the Navtej Singh Johar case, which decriminalised homosexuality under section 377 of the IPC, had made it clear that queerness is a natural phenomena. The presence of transgender identity and other forms of queerness were also examined in the NALSA case ruling.
- The Court stated that the rulings on NALSA and Navtej Johar had resulted in the LGBTQ community’s members no longer being considered second-class citizens. Nevertheless, it did not go so far as to allow same-sex unions.
Why wouldn’t SC read the SMA aloud?
- The Court reasoned that voiding the SMA for prohibiting same-sex marriages would be equivalent to returning to an era in which marriages between individuals from different castes and religions were forbidden.
- Second, it stated that it would be stepping into legislative territory and creating judicial legislation if it were to read down or up the SMA’s provisions, that is, add or remove words. When using its judicial review authority, the Court must avoid taking on cases that belong in the legislative branch, especially when they affect policy.
Will the idea be welcomed by the legislature?
- The government maintained throughout the hearings that same-sex marriage should be prohibited. Additionally, it had noted that court interference would “completely wreck the delicate balance of personal laws.”
Path ahead:
- The Court has established a series of rules, which include telling police stations not to persecute the community and forming a commission headed by the Cabinet Secretary to define the rights of homosexual couples in relationships.
- The Court stated that the state could adopt a variety of policy measures, such as making all marriage and family-related legislation gender neutral or drafting a distinct SMA-like statute in a gender-neutral language. Among many other options, they could enact laws establishing domestic partnerships or an Act establishing civil unions.
