On Tuesday, October 17, a five-judge Constitution Bench presided over by Chief Justice of India (CJI) D Y Chandrachud unanimously decided against recognising same-sex unions. In a 3-2 majority decision, the Bench—which also included Justices Sanjay Kishan Kaul, Ravindra Bhat, Hima Kohli, and P S Narasimha—declined to permit civil unions for non-heterosexual couples.
There is no basic right to marriage under the Constitution, according to all five of the judges on the bench, including the Chief Justice of India and Justice Kaul, who argued in favour of civil unions.
The Special Marriage Act of 1954 cannot be changed to permit same-sex marriage, according to the unanimous decision of the five justices.
The petitioners had requested that “spouses” rather than “man and woman” be considered when interpreting the phrase “marriage.” Alternately, the petitioners sought the repeal of the SMA’s gender-exclusive clauses.
The legal structure for interfaith and intercaste marriages would be in jeopardy, according to CJI Chandrachud, if the SMA clauses were overturned. He continued by saying that applying a gender-neutral interpretation of the SMA would amount to “judicial lawmaking,” which is against the separation of powers principle.
Individual opinions were written by CJI Chandrachud, Justice Kaul, Justice Bhat, and Justice Narasimha, four of the five justices. The CJI and Justice Kaul authored minority views in support of expanding civil union to more people, but Justice Bhat, Justice Kohli, who concurred with Justice Bhat, and Justice Narasimha made up the majority.
The legal status that accords same-sex couples certain rights and obligations that are often granted to married couples is referred to as a “civil union.” Although a civil union resembles marriage, it is not given the same legal standing as marriage in personal law.
The right to form unions derives from the fundamental rights to freedom of speech and expression and the right to life, according to the CJI and Justice Kaul in their respective opinions. According to the minority opinion, same-sex couples must be granted the same “bouquet of rights” as heterosexual couples in order to be granted civil union status.
The Center’s position that an exclusive Cabinet committee will examine rights that can be granted to non-heterosexual couples was noted by all five judges while discussing the “bouquet of rights” in this case. This might include things like setting up joint bank accounts, allowing same-sex couples to make medical choices for the other spouse, becoming beneficiaries of provident funds, pensions, and inheritances, etc.
The Central Adoption Resource Authority’s (CARA) particular rules that forbid same-sex or unmarried couples from adopting a child jointly were overturned in the minority opinion by Chief Justice Chandrachud and Justice Kaul.
According to the CJI, it is discriminatory to believe that only married, heterosexual couples can offer a secure environment in which to raise children.
