Supreme Court Delivers Pivotal Verdict: Same Sex Marriage Not a Fundamental Right


In a landmark decision, a five-judge bench of the Supreme Court of India, headed by Chief Justice DY Chandrachud, unanimously ruled against legalizing same-sex marriage on October 17. The bench also issued a 3:2 verdict against extending civil unions to non-heterosexual couples. Here are the key takeaways from the decision and reactions from the LGBTQIA+ community and activists.

Key Decision Points

  1. Legal Technicalities: The court’s refusal to legalize same-sex marriages was based on legal technicalities and concerns about judicial legislation. It did not reflect an in-principle opposition to marriage equality.
  2. Rights of Non-Urban Queer Couples: The judges unanimously recognized that queer couples are not limited to urban or elitist demographics, countering arguments made during the case.
  3. Government Panel for Practical Difficulties: The bench acknowledged the government’s submission to set up a panel headed by the cabinet secretary to address the practical challenges faced by same-sex couples in accessing basic services. The court emphasized that these difficulties are discriminatory and should be addressed.

Reactions from Petitioners

  • Rights Not Granted But Acknowledged: Geeta Luthra, senior advocate and counsel for several petitioners, highlighted that even though the right to marriage was not granted, Chief Justice Chandrachud acknowledged that the same bundle of rights enjoyed by married couples should be available to same-sex couples.
  • Observations in Favor of Queer Community: LGBTQIA+ rights activist Harish Iyer noted that while the final verdict did not favor the queer community, many observations during the case were in their favor. He stressed the importance of holding elected officials accountable and fighting for societal equality.
  • Ongoing Fight: Anjali Gopalan, a petitioner and activist, expressed disappointment over the lack of progress on adoption rights but emphasized the importance of continuing the fight for basic rights for all citizens.
Supreme Court; (right) LGBTQ members take part in a pride parade, in Bhopal | PTI

Concerns of Delay

The government’s plan to set up a panel to address practical issues faced by same-sex couples in accessing services like Provident Fund and pension remains unclear. This delay could be due to the political ramifications of addressing LGBTQIA+ rights, particularly in an election year.

Key Observations by the Court

  • Individual Right to Enter a Union: Chief Justice Chandrachud emphasized that an individual’s right to enter into a union should not be restricted based on sexual orientation.
  • Parliament’s Role: The court was cautious not to overstep into legislative territory, stating that it is Parliament’s role to decide if changes are needed in the Special Marriage Act.
  • Adoption Rights: While Chief Justice Chandrachud supported same-sex couples’ right to adopt children, the majority of judges on the bench did not agree. They questioned the current norms that bar queer couples from adopting and considered it discriminatory.
  • Queerness is Not Urban or Elitist: The court unanimously recognized that queerness is not confined to urban or elitist demographics, countering previous arguments.
  • Legislative Role: The majority judgment stated that the court cannot create a legal framework for queer couples; this responsibility lies with the legislature due to various considerations.
  • Gender-Neutral Interpretation of Special Marriage Act: The court ruled out a gender-neutral interpretation of the Special Marriage Act, expressing concerns about unintended consequences and possible vulnerabilities for women. Denial of benefits to queer partners, such as Provident Fund and pension, was acknowledged as having an adverse discriminatory effect.
  • Adoption Rights: The minority judgment supported extending adoption rights to same-sex couples, emphasizing the need to explore all areas and ensure benefits reach children in need of stable homes.
  • Review of Legislative Schemes: Justice PS Narasimha supported a review of legislative schemes that exclude same-sex partners from pension, Provident Fund, gratuity, and insurance benefits.

The Supreme Court’s decision, while disappointing to many, has highlighted the importance of addressing LGBTQIA+ rights and societal equality in India. The verdict underscores the need for continued advocacy and legislative action to ensure equal rights for all citizens.

Implications of the Decision

The decision not only impacts LGBTQIA+ rights but also raises questions about the prioritization of these rights in the context of an upcoming general election, where addressing LGBTQIA+ rights may not be high on the government’s agenda due to potential political consequences and societal resistance.

As the LGBTQIA+ community continues to fight for equal rights, the judgment serves as a reminder that change in legislation may be necessary to ensure that same-sex couples enjoy the same legal rights and benefits as their heterosexual counterparts. This ongoing struggle underscores the importance of civic engagement, advocacy, and legal reforms to achieve true equality for all.

This verdict highlights the complex and evolving nature of LGBTQIA+ rights in India, where societal, legal, and political forces intersect. The fight for equality for all citizens, regardless of sexual orientation, is far from over, and the journey towards recognition and acceptance continues.

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