Same Sex Marriage: The Four Judgements In Brief

On October 17, 2023, the Supreme Court deferred the decision on the legal recognition of same-sex marriage to the legislature.

The Constitution Bench was led by Chief Justice of India D.Y. Chandrachud. The bench also included Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha. Justice Bhat is set to retire on October 20.

All the judges, with the exception of Justice Kohli, provided individual judgments. Here is a brief version of each of the available judgements.

Chief Justice DY Chandrachud

The Chief Justice of India (CJI) has determined that the court does not have the authority to amend the Special Marriage Act of 1954 to encompass same-sex couples. The responsibility of legislating on marriage issues rests with the Parliament and State legislature.

The CJI also noted that the concept of marriage evolves over time. He emphasized that individuals identifying as queer have the same rights as others to form a "union".

The CJI highlighted that the state's non-recognition of the rights associated with such a union can disadvantage queer couples, who currently cannot legally marry.

In summary, the CJI believes it is the legislature's role to decide on the legality of same-sex marriage, but stresses that the state should not overlook or discriminate against unions of queer couples.

Justice Sanjay Kishan Kaul

Justice Kaul used the term “civil union” for non-heterosexual relationships. They should not suffer any form of discrimination, he said.

He agreed with the CJI that the government should form a committee headed by the Cabinet Secretary to look into entitlements for same-sex couples. Justice Kaul held that same-sex unions are entitled to protection under a constitutional scheme.

Justice Kaul, however, disagreed with the petitioners that the Special Marriage Act was discriminatory. He says it provides a secular framework. While recognising the right to civil unions between same-sex couples, Justice Kaul said a regulatory framework should be created to recognise such unions.

All constitutional authorities should work towards this end. Statutes should be interpreted in consonance with the recognition of civil union between same-sex couples.

Justice Ravindra Bhat

Justice Ravindra Bhat opined that the responsibility to determine marriage equality for LGBTQ couples lies with the Parliament. He commented that the outcomes related to intimate spaces were achieved through legislative acts, without specifically endorsing the CJI's views.

In the earlier hearings on marriage equality, Solicitor General Tushar Mehta, representing the Central government, mentioned that introducing marriage equality could affect 160 existing laws. Thus, he asserted that only Parliament has the authority to implement such changes.

Drawing an analogy, Justice Bhat stated that just as a citizen cannot demand the creation of roads to exercise the right to travel, the Court cannot provide a comprehensive set of rights without a legislative structure in place to support same-sex marriage and the rights of LGBTQ individuals.

Justice Narasimha

Justice Narasimha stated that the Constitution does not permit the recognition of a civil union that is equivalent to marriage.

He suggested a review of legislative policies that exclude same-sex partners from benefits such as pension, provident fund, gratuity, and insurance.

Justice P.S. Narasimha concurred with Justice Bhat's judgment.

He further mentioned that the rights of the LGBTQIA community encompass gender identity, sexual orientation, and the right to cohabitation. He affirmed their full freedom in these areas.

Justice Narasimha emphasized that the concept of marriage requires legislative intervention.

Additionally, he noted that CARA regulations remain valid.