The Supreme Court constituted a five judge Constitutional Bench headed by CJI Justice D.Y. Chandrachud to consider the grant of legal validity to the same-sex marriages in India under the Special Marriage Act, 1954.
Earlier on 24th August, 2017, the Supreme Court in case of Justice K.S. Puttaswamy (retd.) vs Union of India declared that Right to Privacy is a Fundamental Right mostly under Article 21 and additionally as a part of Freedom guaranteed by Part III of the Constitution.
On 6th September, 2018, in the case of Navtej Singh Johar vs Union of India, the Supreme Court termed the part of Section 377 of IPC which criminalises consensual unnatural sex as irrational, indefensible and manifestly arbitrary but Section 377 remains in force relating to sex with minors, non-consensual sexual acts and bestiality. Now sex between consenting adults of the same sex is not a criminal act and is not punishable
A five-judge bench of the Supreme Court on 27th September, 2018 in Joseph shine v. Union of India case struck down 160 years old law regarding ADULTRY, the Section 497 of IPC calling it unconstitutional. Now, Adultery is no longer a crime in India and law is gender neutral but ADULTERY is still a ground for DIVORCE.
The Right to Privacy as a Fundamental Right is available in many countries e,g, India, USA, Canada, South Africa, UK, the European Union, etc. In about 25 countries Homo-sexuality is not an offence. Also, Adultery is no crime in India, Japan, China, Australia, etc.
In lieu of these recent rulings of the Supreme Court, there has been a growing demand of awarding the legal recognition to same sex marriages in India. Especially after the Decriminalisation of part of Section 377 of IPC which criminalises consensual unnatural sex as irrational, indefensible and manifestly arbitrary, a number of petitions were filed in the Supreme Court to make same-sex marriages legal.
The stand of the Union Government is against the grant of legal recognition to same-sex marriages. The Solicitor General of India Tushar Mehta who appeared before the Supreme Court as a counsel of Union Government emphasized that Marriage is a sacred institution and the decisions about the same should be taken by the Legislature only and not by the Judiciary. The Parliament and State Legislatures are the more appropriate authorities for this. Also, Marriage is a subject of the concurrent list. Thus, before any decision is made, the opinion of all the states and Union territories is also needed to be considered.
Mukul Rohtagi, the Counsel for the Petitioners pleaded the bench to substitute terms like “man”, ‘woman’, ‘husband’ and ‘wife’ under the Special Marriage Act 1954 with gender neutral terms such as ‘person’ and ‘spouse’ and same-sex marriages should be legally allowed under the provision of Special Marriage Act 1954.
Same-sex relations and marriages are slowly but surely being accepted globally. This is a complex matter and a large number of hearings will be required. Religious, social, economic, biological and legal aspects have to be taken into consideration before reaching any decision on it.
Decision of Supreme Court on Same-Sex Marriage
On the 17th of October 2023, a five-judge bench consisting of Chief Justice D. Y. Chandrachud, Justices Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli, and P. S. Narasimha delivered a significant ruling regarding same-sex marriage recognition under the Special Marriage Act 1954.
The bench unanimously ruled that same-sex marriages would not be granted legal recognition under the Special Marriage Act 1954. Instead, the bench clarified that the responsibility for validating such unions rests with the Parliament and State Legislatures.
In a majority of decision (3:2), the bench ruled against the introduction of a civil union for the homosexual couples and in a separate decision of the same majority, it also ruled against the right to adoption for unmarried and homosexual couples. The concurring opinion was given by Justices S. Ravindra Bhat, Hima Kohli and P.S Narasimha, and the dissenting opinion was given by CJI D. Y. Chandrachud and Justice Sanjay Kishan Kaul.
The bench unanimously accepted the establishment of a High-Power Committee by the Parliament or by the Central Government. This committee would be entrusted with investigating the discrimination that the LGBTQ+ (Lesbian, Gay, Bisexual, Transgender, Queer) couples face and the legal rights that they will enjoy alongside with their hetero-sexual peers, such as access to joint bank accounts, recognition of heirs, visits in prisons, ration cards, pension, gratuity etc. The government was instructed to ensure that individuals from the LGBTQ+ community do not face discrimination or abuse. Additionally, the police were directed not to initiate FIRs against homosexuals based solely on their relationships, pending an initial investigation. An additional instruction was issued which includes the creation of a dedicated hotline for the LGBTQ+ community and that any attempts at forced hormonal therapy should be prohibited.
The reasoning behind this decision was the preservation of the principle of separation of powers. The bench emphasized that it is the duty of the Parliament to enact laws, while the court’s role is to interpret and examine the law. To maintain the integrity of the separation of powers, the court must abstain from involvement in matters, particularly policies that fall within the legislative domain.
Article 50 of the Constitution under DPSP’s states about separation of
Judiciary from Executive.
“This court cannot either strike down the constitutional validity of the Special Marriage Act or read words into the Special Marriage Act because of its institutional limitations. The court, in the exercise of the power of judicial review, must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain. […] The judiciary cannot legislate”
Chief Justice Chandrachud, while delivering the verdict, stressed that homosexuality is not a recent urban phenomenon but has existed for centuries. He emphasized that every individual has the fundamental right to choose their life partner, a right enshrined in Article 21 of the Constitution, which guarantees the freedom to select one’s life partner.
He further stated that it is incorrect to assume that the institution of marriage is static and cannot evolve. Dismissing the provisions of the Special Marriage Act would be akin to regressing to pre-independence laws.
In summary, the Supreme Court’s ruling reflects the intricate legal and social considerations surrounding same-sex marriage in India, with a focus on the separation of powers, the right to choose a life partner and the importance of a legal framework for civil unions.
Instead of judiciary, this matter is to be decided by the Parliament as it represents People of India. Living together as partners and having sexual relationship by same sex individuals, which is decriminalized now, is not comparable with the Indian family unit – a husband, a wife, and children born out of the union. The same-sex marriage is not in conformity with societal morality and Indian Ethos. Legislative understanding of marriage in the Indian statutory and personal law regime is very specific that is marriage between a biological man and a biological woman only. This is a foreign concept.
