A five-judge bench of the Supreme Court of India has ruled against legalizing same-sex marriage in a unanimous verdict. On October 17, 2023, the Court released four separate judgments that decided the fate of 21 petitions by same-sex couples seeking the legal recognition of marriage. All five judges of the bench refused to either strike down or read into the Special Marriage Act of 1954 provisions that would allow same-sex marriages, stating that it was the responsibility of the parliament to frame such laws. The justices went on to state that there was no fundamental right to marry in the Constitution and that the Court could not enter the legislative domain by filling a void that the petitioners claimed infringed upon their rights.
Indian legal news outlet Live Law tweeted:
Final Outcome in #SameSexMariage Case :
#SupremeCourt refuses to recognise same-sex marriage, says it is for the legislature to do.
— Live Law (@LiveLawIndia) October 17, 2023
This judgment has already sparked concern among LGBTQ+ activists, as they expected the Court to proactively protect and uphold their fundamental rights. This expectation arose from the fact that some of the petitioners, including same-sex couples, emphasized how their rights were violated when they were denied the right to marry solely based on their sexual orientation.
Asia Democracy Chronicle highlighted the reaction of an LGBTQ+ student named Midi:
Midi, 28, LGBT student in New Delhi, On the rejection by the Supreme Court in India of an appeal to legalize same-sex marriage in the country pic.twitter.com/6aSSVpkPLr
— Asia Democracy Chronicles (@demchronicles) October 19, 2023
A long struggle
In 2009, a Delhi High Court decriminalised homosexuality in India by striking down Section 377 of the Indian Penal Code, a remnant of an 1860 British colonial-era law. This ruling was welcomed by the LGBTQ+ community and human rights advocates, though it faced intense opposition from religious leaders. However, in December 2013, the Supreme Court of India reversed the Delhi High Court's judgment and reinstated Section 377 — a move that many activists deemed undemocratic and a violation of human rights.
In July 2014, a remark by Harsh Vardhan, the Health Minister of the then-recently elected Modi government, stating that gay people are entitled to human rights just like anyone else, rekindled hope within India's LGBTQ+ community. Subsequently, in September 2018, the Indian Supreme Court, led by Chief Justice of India Dipak Misra, struck down parts of Section 377 insofar as it criminalized consensual acts between same-sex adults. The decision brought joy to the LGBTQ+ community and activists, recognizing the many years of activism dedicated to decriminalizing same-sex relationships.
In a July 2020 interview with Global Voices, Supreme Court Advocate Saurabh Kirpal, one of the lawyers representing the petitioners in the case that resulted in the decriminalization of homosexuality, highlighted that the most significant outcome of the verdict was the shift of discussions on sexuality and queerness into the public sphere, free from fear of reprisal by the authorities.
In spite of these developments, public opinion on same-sex marriage remained negative in India. Furthermore, in September 2020, the right-wing Hindu Nationalist Bharatiya Janta Party (BJP) led central government opposed a plea that same-sex marriages should be recognised under the Hindu Marriage Act (HMA) and Special Marriage Act (SMA). These Acts govern the legal aspects of Hindu marriages and inter-faith marriages in India, respectively. Tushar Mehta, the solicitor general, told the Delhi High Court that same-sex marriage “would not be permissible” under the Hindu Marriage Act and Special Marriage Act because it went “against our laws, our legal system, our society and our values.”
Dissecting the Supreme Court’s verdict
The majority bench noted that while the right to marry or have a legally recognised marriage is only statutory (which means that this right is based on statutes or laws enacted by the government), it acknowledged a different fundamental right. This fundamental right pertains to the ability to cohabit and live in a relationship within the privacy of one's home. Unlike the right to marry, the fundamental right to cohabit and live in a relationship is not dependent on the state's recognition of the relationship or the status of being “married.” Instead, it is a right enjoyed by all individuals, regardless of whether the state officially recognizes their relationship or not, and this right extends to the LGBTQ+ community.
In essence, the majority emphasized that individuals have the right to live together in a relationship, irrespective of the state's formal recognition of their marital status. However, the majority's ruling fell short of granting such relationships the status of marriage or imposing a duty or obligation on the State to create a framework for civil unions, registered partnerships, or marriages for LGBTQ+ individuals or abiding cohabitational relationships.
In addition to refusing to declare marriage as a fundamental right or granting same-sex couples the legal right to form civil unions, the majority also held that same-sex couples do not have the right to adopt under the existing adoption regime. They held that the current regime was enacted to grant adoption rights to either married couples or single persons, keeping the “best interest of the child” in mind. Given the absence of any legal recognition of same-sex marriages, the majority acknowledged that same-sex couples cannot adopt children as a couple, only as individuals. Until a legal framework for marriage for same-sex couples is established, which would require legislative deliberation, it would be impermissible for the majority to modify the adoption regime.
Overall, the majority judgment granted no additional rights to the LGBTQ+ community, except for acknowledging the discrimination and stigma they face in society. The right for LGBTQ+ individuals to cohabitate and form meaningful relationships based on individual choice, dignity, and privacy was emphasized, but these rights were already granted by the Court in Navtej Singh Johar v. Union of India in 2018. Therefore, the judgment is of limited impact and merely reiterates the status quo that has been in place since 2018.
It is unfortunate that after 21 petitions, ten days of live hearings, months of deliberations, and four separate judgments, the LGBTQ+ community finds itself in the same position as it did five years ago.