The Indian Supreme Court. (Photo by TK Kurikawa via Bigstock)
The Indian Supreme Court of India on Oct. 17 issued its long-awaited marriage equality ruling.
A five-judge constitutional bench led by Chief Justice Dhananjaya Yeshwant Chandrachud in a 3-2 verdict against recognizing the constitutional validity of same-sex marriages in India. The country’s top court said Parliament must decide whether to extend marriage rights to same-sex couples.
The Supreme Court recognized the court cannot make laws, but can only interpret them.
Chandrachud at the beginning of the ruling said the doctrine of separation of powers means that each of the three branches of the state performs a distinct function and therefore no other branch can function any other’s function. Chandrachud mentioned Section 4 of the Special Marriage Act is unconstitutional because it is not sufficiently inclusive. The Supreme Court said either the Special Marriage Act needs to be struck down or read down.
The Supreme Court recognized that if the Special Marriage Act is struck down, it will take the country to the pre-independence era.
“If the court takes the second approach and reads words into the Special Marriage Act, it will be taking up the role of the legislature,” said Chandrachud. “The court is not equipped to undertake such an exercise of reading meaning into the statute.”
The Special Marriage Act of 1954 is a law with provisions for civil unions for Indians and Indian nationals who live abroad, regardless of religion or faith followed by either party. The Special Marriage Act allows people of two different religions to marry.
Section 4 has some provisions: Neither of the parties should have a living spouse, both parties should be capable of giving consent and should be mentally competent at the time of marriage and the parties shall not be within the prohibited degree of relations under their law. The male party must be at least 21-years-old and the female party must be at least 18-years-old.
Chandrachud noted the court must be careful not to enter into the legislative domain. Chandrachud said Parliament must decide whether a change to the Special Marriage Act is needed.
“The right to enter into a union includes the right to choose one’s partner and the right to recognition of that union,” said Chandrachud. “A failure to recognize such associations will result in discrimination against queer couples.”
Chandrachud said that for the full enjoyment of such relationships, such unions need recognition and there cannot be denial of basic goods and services. The state can indirectly infringe upon freedom if it does not recognize the same.
Chandrachud also noted a person’s gender is not the same as their sexuality. He said the law recognizes a transgender person’s marriage if their partner is heterosexual. Chandrachud said a union between a trans man and a trans woman, or vice versa, can be registered under the Special Marriage Act because a trans person can be in a heterosexual relationship.
The Supreme Court recognized queer persons cannot be discriminated against. The court said that the material benefits and services flowing to heterosexual couples and denied to queer couples violate their fundamental rights.
On adoption issues, Chandrachud said the Central Adoption Resource Authority has exceeded its authority in barring unmarried couples.
CARA oversees the adoption of children in India. It functions under the Women and Child Development and it is authorized to regulate and monitor inter-country and in-country adoptions.
Chandrachud said the difference between married couples and unmarried couples has no reasonable nexus with CARA’s objective to ensure the best interests of the child. The court said it cannot be assumed that unmarried couples are not serious about their relationship.
The Supreme Court refused to strike down the Foreign Marriage Act of 1969, which deals with the recognition of marriage of Indian citizens outside the country.
Chandrachud and Justice Sanjay Kishan Kaul said queer couples have a fundamental right to seek legal recognition of their union. The other three judges, Justices Shripathi Ravindra Bhat, Hima Kohli and Pamidighantam Sri Narasimha, held queer couples cannot claim a right to recognition of their union in the absence of a statutory enactment.
While giving direction to the central; state and Union Territory governments, Chandrachud said that queer community should not be discriminated against. He also noted the government should ensure there is no discrimination in access to goods and services, sensitize the public about queer rights, create a hotline for the queer community, create safe houses for queer couples and ensure intersex children are not forced to undergo operations.
Chandrachud also directed police to not harass queer people by summoning them to police station solely to enquire about their sexual identity, not forcing queer persons to return to their birth family. Chandrachud said authorities should conduct a preliminary inquiry before registering a First Information Report, or FIR, against a queer couple over their relationship.
“Truly disappointed by today’s verdict. We are exactly where we started,” said Harish Iyer, a prominent LGBTQ activist in India and one of the plaintiffs in the marriage equality case. “It’s just one topsy turvy ride with no significance.”
Anjali Gopalan, another plaintiff,, told the Asian News Agency she has been fighting for a long time and will keep doing so.
“Regarding adoption also nothing was done, what the chief justice of India said was very good regarding adoption but it’s disappointing that other justices did not agree,” said Anjali Gopalan. “This is democracy, but we are denying basic rights to our own citizens.”
Karuna Nundy, one of the lawyers in the marriage equality case, told the Asian News Agency there were some opportunities today that she believes have been pushed off to the legislators, and the central government has made their stand clear with regards to marriage.
“We hope that their committee will ensure that civil unions are recognized, and concomitants of marriage are then brought into law, at least with regards to civil unions,” said Nundy. “I will also say that Congress and other governments in power in the states have many opportunities to bring into law the recognition of a partner’s rights to make medical decisions because they can legislate on health, they can look at employment nondiscrimination, there is a lot that can be done. If we heard anything that was unanimous it was that queer citizens have rights. Rights of queer citizens must be protected and state governments can protect them”
The Supreme Court Bar Association President Adish Aggarwala reacted to the verdict and welcomed the marriage equality ruling.
“I am happy that the Supreme Court of India has accepted the version of the government of India in which it was argued that the court has no power to give this right of same-sex marriage. It is the only right of the Indian parliament,” Aggarwala told the Asian News Agency. “Today it has been accepted by the honorable Supreme Court.”
“We are happy that the Supreme Court has held that this power cannot be given to the same sex for having a marriage because India is an ancient country,” added Aggarwala. “India has its own values in society. so, by not providing this right, we hail the judgment of the Supreme Court on this aspect.”
Ankush Kumar is a reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India and Singapore. He recently reported for the Daily Beast. He can be reached at mohitk@opiniondaily.news. He is on Twitter at @mohitkopinion.
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