Context

• The Supreme Court recently issued its much-anticipated decision rejecting requests to legalise same-sex unions and went into greater detail about the Special Marriage Act of 1954's provisions.
• As all five judges have chosen to leave it to the legislature to enact such a law, which has been a subject of deliberation since the verdict was pronounced, it is imperative to understand both sides of the argument. 

The SC Verdict on the Same-Sex Marriage

• Chief Justice of India’s (CJI) and Justice Kaul's Opinion
  • The two senior-most judges of the apex court, CJI and Justice Kaul, issued separate but concurring opinions.
  • They held that there was no fundamental right to marry for same-sex couples.
  • However, they granted declarations and issued directions to alleviate the hardships faced by same-sex couples living together.
• The Dissenting Opinion
  • The remaining three justices on the Bench (Justices Ravindra Bhat, Hima Kohli, and P S Narasimha) disagreed with the declarations and directions issued by the first two senior-most judges.
  • However, they also held that there was no fundamental right to marry for same-sex couples.
• The Majority Opinion
  • There is no unqualified right to marriage except that recognised by statute or custom;
  • Legal recognition of the right to a union can only be through enacted law;
  • Courts cannot enjoin or direct the creation of a legal or regulatory framework resulting in the conferment of legal status on same-sex couples, nor can same-sex couples be granted the right to adopt;
  • It is not possible to read provisions in existing statutes governing marriage in a gender-neutral manner;
  • The constitutional challenge to the Special Marriage Act1954, the Hindu Marriage Act1955, and the Foreign Marriage Act 1969 is rejected;
• Directions to Alleviate Hardships: Despite rejecting same-sex marriage as a fundamental right, the Court issued separate directions to the Union of India to set up a high-level committee to address the difficulties faced by same-sex couples living together, including discrimination.

Arguments Questioning SC’s Verdict

• SC Has Set Precedents in Addressing Socio-Political Matter
  • The SC’s role is critical in shaping the socio-political landscape of India through its judgments, particularly through mechanisms like public interest litigation (PIL).
  • The Court's proactiveness in addressing various social and environmental issues has been celebrated, showcasing its transformative power in Indian society.
  • Many changes resulted from the Court's interpretations of the Constitution rather than existing laws.
    • For example, from directing the serving of mid-day meals to ordering the use of CNG to combat air pollution, the SC has intervened to ensure a better life for the common person.
    • None of these directions existed in law but were fashioned by the courts through an interpretation of multiple provisions of the Constitution.
• The Court’s Decision to Rely on Judicial Restraint is Puzzling
  • Considering the Court's historical role in addressing injustices and promoting social change, the court’s decision to adopt a philosophy of judicial restraint is puzzling.
  • The majority refused to recognise the right to a civil partnership and the right of queer couples to adopt, despite acknowledging the discrimination faced by the LGBTQIA+ community.
  • In the face of such discrimination and injustice, the Court did not take a more proactive role in ensuring LGBTQ+ rights.
  • The judgment acknowledges the need to address the deprivation faced by the LGBTQIA+ community but places the onus on the legislature to rectify these issues.
  • This stance is problematic, especially given the history of parliamentary inaction in addressing LGBTQ+ rights.
• The Court Has Overlooked Its Duty to Protect the Fundamental Right of Queer Community
  • The Court's reluctance to interpret the Constitution to provide rights to the LGBTQ+ community is inconsistent with its role in promoting justice.
  • This is because it was the failure of the Parliament to address these issues that led to the petitions in the first place.
  • Court’s Decision to Place Onus on Legislature in Morally and Legally Incorrect
  • When the judiciary confronts systemic injustices and deprivations, it is not simply empowered but constitutionally obligated to intervene and provide relief.
  • This is not an instance of the judiciary overstepping its bounds but rather a constitutional duty.
  • Hence, the Court's endorsement of the government's stance is legally and morally incorrect.
• Verdict Goes Against the Idea of Framers of the Constitution
  • The framers of the Constitution were aware of the multiple forms of discrimination that existed in the country at the time of Independence.
  • They were also aware that electoral politics, while essential in a democracy, was not the surest way to achieve justice for all.
  • Therefore, the ultimate task of defending the fundamental rights of all citizens was placed upon the constitutional courts of the country.
  • The SC has been explicitly mandated to strike down laws which violate any fundamental right (Article 13).
  • Any person has the right to petition the Court for enforcement of her fundamental rights by filing a petition under Article 32, a provision that B R Ambedkar referred to as the heart and soul of the Constitution.

Arguments Supporting the SC Verdict

• Marriage Has Its Roots in Heterosexual Unions
  • The importance of marriage has existed almost since the beginning of human civilisation, but on the understanding that marriage is heterosexual: A union between man and woman; two persons of the opposite sex.
  • The premises supporting the concept of marriage were and remain fundamental:
    • That the human race must procreate in order to survive.
    • Procreation occurs only through sexual relations between a man and woman committed to a bond.
    • Over the centuries, society has recognised that bond as marriage.
• Same-Sex Marriage is Only a Recent Phenomenon
  • The same-sex marriage is a recent concept, it has gained popularity and legal recognition in several countries, particularly in North and South America and Western Europe.
  • It is legally recognised in at least 34 countries, which collectively make up only 17% of the world's population.
  • The distribution of same-sex marriage laws is uneven, with South Africa and Taiwan being the only representatives in their respective continents.
• Granting Marriage Equality is Beyond SC’s Power
  • Under India’s Constitution, the people of India, through their representatives in Parliament and in state legislatures are free to accept marriage as including a union of same-sex couples.
  • But as a matter of constitutional law, neither a Constitution Bench of five Judges, nor even the full complement of 34 judges of the SC, have the authority to do the same.
  • Under India’s Constitution, the power to make laws including laws as to marriage vest exclusively either with Parliament at the Centre or with a state legislature in a state:
    • By reason of provisions contained in Article 245 (1) and Article 246(2) of the Constitution read along with Item 5 in the Concurrent List.

A Comparative Analysis of US SC and India’s SC’s Verdict on Same-Sex Marriage

• US Supreme Court's Perspective (Obergefell v. Hodges)
  • In the Obergefell case, the US Supreme Court, with a majority opinion, ruled in favour of same-sex marriage. Chief Justice Roberts and three other colleagues dissented.
  • Chief Justice Roberts emphasised the need for the democratic process, arguing that the decision to recognise same-sex marriage should be made by elected representatives.
• Supreme Court of India's Perspective (Supriya Chakraborty v Union of India)
  • With a majority opinion of three out of five judges, the SC held that the question of whether same-sex marriage should be accepted in India rests with the country's Parliament and state legislatures.
  • It has not been recognised in any law so far.

Conclusion

• The verdict in the Supriya Chakraborty case reflects a complex and divided legal landscape regarding same-sex marriage in India.
• The Constitution establishes a delicate balance to protect the rights and liberties of all citizens.
• For now, the LGBTQIA+ community has to abide by the Court’s direction that the government should form a committee to decide the rights and entitlements of queer couples.