The Supreme Court of India, in a Constitution Bench of 5 judges, declined to legally recognize same-sex marriages, stating that it’s the role of Parliament to amend the Special Marriage Act if needed. Chief Justice DY Chandrachud and other judges delivered individual opinions, with some supporting same-sex marriage and others against it. Petitioners had sought registration of same-sex marriages under the Special Marriage Act, while the Central Government opposed it, citing Indian societal norms. This case followed the 2018 Supreme Court decision to decriminalize homosexuality by striking down a portion of Section 377 of the Indian Penal Code.

The Supreme Court’s decision can be summarized in three key points:

1. Marriage Equality: Justices Bhat, Kaul, and Narasimha argued that there’s no valid reason to deny same-sex marriage, affirming the right of gay couples to marry without interference. Justice Bhatt emphasized the right of queer couples to cohabit peacefully.
2. Marriage as a Fundamental Right: All five judges agreed that marriage is not a fundamental right for homosexuals according to the Constitution. Chief Justice Chandrachud, along with Justices Kaul, Bhat, and Narasimha, concurred on this point.
3. Adoption Rights: Three out of five judges rejected the idea of same-sex couples adopting children. Chief Justice Chandrachud supported the right of queer couples to adopt, with Justice Kaul in agreement. However, Justice Bhat expressed reservations, and Justices Narasimha and Hima Kohli concurred with Justice Bhat’s stance.

In the courtroom, Justice Chandrachud emphasized, “Homosexuality is not confined solely to urban areas or the elite class. It extends beyond people who speak English and hold prestigious jobs, as individuals in rural areas, including women engaged in farming, can also identify as queer. Presuming that queerness is exclusive to urban or elite populations disregards the broader reality.”

He further stressed that queerness is not determined by factors such as race, class, or socio-economic status, debunking the misconception that only certain groups can be considered queer. Additionally, Justice Chandrachud noted that the institution of marriage is not a static, unchanging concept, as the legislature has introduced numerous reforms to marriage laws through various acts.

“Homosexuality extends beyond the urban elite class or individuals who are proficient in English; it can also be found in rural areas, including among women engaged in farming,” stated the Supreme Court.

Chief Justice Chandrachud asserted that every individual has the right to choose their life partner. He emphasized that this right extends to transgender individuals, stating that a transgender woman can marry a man, and a transgender man can marry a woman. He emphasized the importance of personal autonomy in making choices about one’s life.

He also pointed out that Article 15 of the Constitution addresses the issue of sexual orientation, recognizing the diversity of relationships in our complex society and highlighting the significance of love and cooperation in human interactions. Chandrachud suggested that various types of relationships exist, and it’s crucial to consider these within the framework of the Constitution’s provisions.

Regarding the Special Marriage Act, he explained that if the court deems Section 4 of the Act unconstitutional due to its exclusionary nature, it may need to be either removed or amended to be more inclusive. Abolishing the Act entirely could have implications for the country, potentially taking it back to pre-independence times. Instead, he proposed that the court might choose to amend and update the Act, a role typically reserved for the legislature.

Chandrachud clarified that the law recognizes marriages involving transgender individuals in heterosexual relationships, as a transgender person can engage in a heterosexual relationship. Therefore, the marriage of a transman to a woman or a transwoman to a man can be legally registered under the Special Marriage Act.

The Supreme Court has directed the Central Government to establish a committee dedicated to addressing the rights of the LGBTQ+ community. This committee will be responsible for examining the inclusion of gay couples as families on ration cards, their eligibility for joint bank accounts, as well as matters related to pensions and gratuity. The findings and recommendations of this committee will be reviewed at the central government level.

The Supreme Court has issued directives to both central and state governments, which include:

1. Ensuring non-discrimination against same-sex couples.
2. Promoting public awareness about their rights and needs, with the establishment of helplines to assist them.
3. Requiring that gender-affirming surgeries for a child only take place when the child is of an age to understand the implications.
4. Prohibiting the coercive administration of gender-altering hormones.
5. Ensuring that individuals are not compelled to return to their families against their will.
6. Registering FIRs (First Information Reports) against such couples only after conducting a preliminary investigation.

“The committee will address the issues faced by same-sex couples, but it will not intervene in the matter of recognizing their marriages,” as stated by the Central Government in the Supreme Court.

Following the hearings on petitions in the Supreme Court seeking legal recognition of same-sex marriage, Solicitor General Tushar Mehta, during proceedings in the Supreme Court, announced that the Central Government is prepared to establish a committee aimed at finding solutions to the challenges faced by the LGBTQ+ community.

Mehta clarified that this committee’s scope would not encompass the matter of legally recognizing same-sex marriages. He encouraged the petitioners, namely same-sex couples, to provide their input on the issues at hand, allowing them to suggest possible solutions. The government expressed a positive stance on addressing these concerns. Mehta acknowledged the need for coordinated efforts across various ministries to tackle this complex issue.

Justice PS Narasimha, on the recognition of same-sex marriage, expressed the view that it is unnecessary to categorize the relationships of homosexuals as marriage. He emphasized that a union between two individuals should not be equated with the institution of marriage.

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During the six-day hearing leading up to the decision, the sequence of arguments and comments unfolded as follows:

Sixth Day: same-sex marriage

On the sixth day of the hearing, which took place on April 27, the Supreme Court raised a crucial question, inquiring about the government’s intentions in this matter. The Court highlighted that if it becomes involved, it would become a legal issue and sought clarification on how the government was addressing the safety and welfare of the LGBTQ+ community, emphasizing that they should not face ostracism from society.

Solicitor General Tushar Mehta, representing the Central Government, responded by explaining that the Special Marriage Act was specifically designed for individuals of the opposite gender, intended for people of different faiths. He argued that the government is not obligated to recognize every personal relationship, and the petitioners were essentially seeking to create a new category with a unique purpose, a concept that was not initially envisioned.

Fifth Day: same-sex marriage

On the fifth day of the hearing, which occurred on April 26, the Central Government presented its stance. Solicitor General Tushar Mehta expressed the view that compelling a new definition was not viable. He contended that the court should apply consistent standards for all categories of people under the same legal framework, emphasizing that the government cannot be forced to establish a novel definition.

Mehta raised questions about the term ‘Plus’ in LGBTQIA+ and pointed out the complexity, noting that there were numerous shades and categories within this umbrella. He highlighted that recognizing loosely defined categories could have a far-reaching impact on 160 existing laws, warranting a need for streamlining.

Moreover, Mehta stressed that some individuals refuse to identify with any gender, leading to the question of how the law should classify them, as male or female. He also mentioned a category of individuals who base their gender identification on mood swings, making it challenging to determine a fixed gender. Mehta ultimately questioned who should be the authority in determining what constitutes a valid marriage and between whom. He argued that this matter might be more appropriately addressed by Parliament or state assemblies.

Fourth Day: same-sex marriage

On the fourth day of the hearing, Chief Justice Chandrachud acknowledged that Parliament possesses the authority to address the concerns raised by the petitioners. He underscored the need to determine the extent to which the court can engage with this matter.

Regarding conferring rights under the Special Marriage Act, the Supreme Court recognized that this might necessitate reforms within various personal law boards. Justices Kaul and Bhatt suggested that it might be more practical to explore whether the right to same-sex marriage can be granted, as delving too deeply into the matter could complicate it.

Advocate Maneka Guruswamy, who represented the petitioners, contended that Parliament should not be used as a justification for denying rights established in the Constitution. She emphasized that when the rights of any community are violated, they have the prerogative to approach the constitutional bench under Article 32 of the Constitution. Guruswamy clarified that the petitioners were not seeking special treatment but rather a pragmatic interpretation of their relationships under the Special Marriage Act.

Third Day: same-sex marriage

On the third day of the hearing, Chief Justice Chandrachud posed a critical question: Is it imperative for a marriage to consist of partners of different genders?

During the proceedings, a discussion emerged regarding child adoption. Advocate Vishwanathan, representing the petitioners, argued that LGBTQ parents are equally competent in raising children as their heterosexual counterparts.

The bench rejected the notion that same-sex couples, in contrast to heterosexual couples, are incapable of providing proper care to their children. They emphasized that society is evolving away from traditional gender stereotypes and that the presence of a particular gender is not a prerequisite for effective parenting.

Chief Justice Chandrachud emphasized that a homosexual relationship is not solely a physical connection but encompasses a stable and emotional bond.

Second Day: same-sex marriage

On the second day of the hearing, the Central Government put forth the argument that all states and union territories should be involved in this discussion. Abhishek Manu Singhvi, representing the petitioners, contended that marriage was a prerequisite for accessing benefits related to adoption, surrogacy, inter-state inheritance, tax exemptions, deductions, and compassionate government appointments.

During the same proceedings, the Supreme Court cautioned the government against labeling this issue as an urban elite concept, particularly in the absence of supporting data. Chief Justice Chandrachud pointed out that this perception might seem tied to urban areas, but it’s changing as people from various backgrounds openly address the matter.

First Day: same-sex marriage

On the first day of the hearing, the Supreme Court observed that it would explore the possibility of granting rights to same-sex couples through the Special Marriage Act of 1954, without delving into personal law matters. However, Solicitor General Tushar Mehta, representing the Central Government, argued that these petitions were indicative of the perspectives of the elite class.

Mehta asserted that, from a legal standpoint, marriage is defined as a union between a biological man and a biological woman. In response, the Supreme Court highlighted that there is no clear-cut basis for discrimination between men and women.

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