SC Shifts Same-Sex Marriage Decision to Parliament: Does It Mean Waiting for Legislative Verdict on LGBTQ+ Unions?

Policy Puzzles: In 2022, two same-sex couples knocked the SC doors, seeking official recognition of their unions. One of the petitions challenged the constitutional validity of the Special Marriage Act, 1954, and urged on a gender-neutral interpretation

The Processor
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In a highly anticipated decision, the Supreme Court has rendered a historic verdict on the issue of same-sex marriage. This significant judgment, arriving five years after the decriminalization of homosexuality, asserts that the responsibility of granting legal recognition to same-sex marriage now rests within the legislative realm of the Parliament.

The judgment, pronounced by Chief Justice of India DY Chandrachud, at the helm of a five-judge bench, marks a milestone in India's legal history. 

The bench said: "There is no unqualified right to marriage except as it is recognised under the law. Conferring legal status to a civil union can only be through enacted law. Transsexual persons in homosexual relationships have the right to marry."

The court's ruling left no room for ambiguity, proclaiming that marriage, as a legal institution, does not inherently guarantee an unqualified right but is subject to the parameters defined by the law. It underlined that the conferment of legal status to civil unions, including those of same-sex couples, can only be realized through the promulgation of legislation. The court acknowledged the right of individuals in transsexual relationships to enter into the institution of marriage.

A Legal Journey of Persistence

The backdrop to this momentous decision is a protracted legal journey characterized by resilience and unwavering commitment. In November 2022, two same-sex couples made history by knocking on the doors of the Supreme Court, seeking official recognition of their unions. One of the petitions challenged the constitutional validity of the Special Marriage Act, 1954, and urged the court to embrace a gender-neutral interpretation that would obliterate discrimination based on sexual orientation.

Following the initial petitions, a wave of related cases flooded the legal landscape, prompting the court's decision in January 2023 to amalgamate these cases into a single, pivotal trial. The Constitution Bench, led by Chief Justice DY Chandrachud and further comprising Justices SK Kaul, SR Bhat, PS Narasimha, and Hima Kohli, presided over the proceedings. The courtroom witnessed the fervent engagement of nearly 40 lawyers, passionately advancing their arguments on both sides of the spectrum.

Legal Arguments: Interpretation vs. Legislation

The extensive hearings witnessed a sharp dichotomy in legal stances. Seventeen lawyers made their case for the reinterpretation of the Special Marriage Act, 1954, advocating for a definition of marriage as a union between "persons," regardless of their gender. Conversely, twenty-two lawyers, predominantly representing the government, contended that the onus of legislating on such matters rested with the parliament.

The government presented a resolute position: the recognition of same-sex marriage should be a subject of comprehensive debate and decision in the legislative chambers of the parliament, rather than the judicial halls. Government lawyers argued that marriage, as recognized by the state, derives its foundation from personal laws and religious customs that, at present, do not embrace same-sex unions.

The government asserted that the legal acknowledgment of same-sex marriages necessitated the creation of a new law—a prerogative exclusively vested in the hands of the parliament. They argued that reinterpreting the Special Marriage Act to include same-sex unions would essentially equate to the establishment of a new statute, a task that falls outside the purview of the courts.

Implications & Ongoing National Discourse

Despite the government's plea for a deferment of the proceedings until states could present their perspectives on the matter, the Supreme Court resolutely refused the request. The court underscored the urgency and significance of addressing this fundamental issue.

The court's decision to hand over the matter of legalizing same-sex marriage to the parliament has ignited a fervent and profound national conversation. It raises pertinent questions about the interplay of individual rights, personal laws, and the legislative process. This ruling stands as a defining moment in the continued struggle for LGBTQIA+ rights in India, shedding light on the intricate dynamics between the judiciary and the legislature in shaping the nation's legal landscape.

SC Directions to the Govts Across India

The Centre, state governments, and union territories are directed to ensure:

The queer community is not discriminated against

There is no discrimination in access to goods and services

Sensitise the public about queer rights

Create a hotline for the queer community

Create safe houses for queer couples

Ensure intersex children are not forced to undergo operations.