The Constitution Bench of the Hon’ble Supreme Court of India vide its judgment dated October 17, 2023, in Supriyo @Supriya Chakraborty and Anr v. Union of India W.P.C No. 1011 of 2022, has declined to recognize the right of same-sex couples to marry or have civil unions. The Constitution Bench comprised of Hon’ble Chief Justice of India (CJI) DY Chandrachud, Justice SK Kaul, Justice S Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha, delivered four separate judgements.
The majority opinion was delivered by Justice Bhat and Justice Kohli with Justice Narasimha delivering a separate concurring opinion. However, CJI DY Chandrachud and Justice SK Kaul each penned a dissenting judgment.
All the judges unanimously agreed that there is no absolute right to marriage, and same-sex couples cannot assert it as a fundamental right. The Hon’ble Supreme Court also unanimously rejected the challenge to provisions of the Special Marriage Act.
The majority judges also asserted that civil unions between same-sex couples are not legally recognized, and that they cannot claim the right to adopt children.
The following are the key takeaways from the verdict:
- No Inherent Right to Marriage: Marriage is not an inherent, unqualified right, but rather one subject to statutes and customs.
- No Right to Civil Union Without Legal Framework: Legal recognition of civil unions, akin to marriage, can only be established through an enacted law. The Court cannot mandate or create such a legal status.
- No Legal Status for Queer Couples: Queer couples have the right to form emotional, mental, or sexual relationships, drawing from the right to privacy, choice, and autonomy. However, this doesn’t grant them legal status or entitlement to union of marriage.
- Validity of Special Marriage Act: The challenge to the Special Marriage Act in terms of recognizing same-sex unions is dismissed.
- Entitlement to Compensatory Benefits and Welfare Entitlements: Indirect discrimination affecting queer couples regarding entitlement to compensatory benefits or welfare entitlements tied to marital status should be addressed and eliminated by the Central Government.
- Establishment of a High-Powered Committee: A high-powered committee (HPC) chaired by the Cabinet Secretary, appointed by the Central Government, should comprehensively examine factors related to same-sex marriage, considering the input of all stakeholders, states, and union territories.
- Transgender Persons’ Right to Marry: Transgender individuals in heterosexual relationships are free to marry.
- No Right to Adopt Children: Under current law, queer couples do not have the right to adopt. Regulation 5(3) of Central Adoption Resource Authority Regulations (CARA Regulations), which bars unmarried individuals from adopting, is upheld. However, CARA and the Central Government should consider the implications for de facto families where single individuals are allowed to adopt and subsequently enter non-matrimonial relationships.
- Protection Against Involuntary Medical Treatment: The state must ensure that the cohabitation rights of queer couples are not violated, and steps should be taken to prevent involuntary medical or surgical treatment of queer and transgender individuals.
-Manishi Pathak, Founding Partner and Ranjan Jha, Partner, Anhad LawDisclaimer: The contents of the above publication are based on interpretation, analysis and understanding of applicable laws and updates in law, within the knowledge of authors. Readers should take steps to ascertain the current developments given the everyday changes that may be occurring in India on internationally on the subject covered hereinabove. These are personal views of authors and do not constitute a legal opinion, analysis or interpretation. This is an initiative to share developments in the world of law or as may be relevant for a reader. No reader should act on the basis of any statement made above without seeking professional and up-to-date legal advice.