Today (October 17), Chief Justice of India DY Chandrachud led a five-judge Supreme Court bench that unanimously rejected the legalization of same-sex marriage in India. Additionally, in a 3:2 decision, the bench ruled against allowing civil partnerships for Queer communities (non-heterosexual couples). The other justices on the bench were Sanjay Kishan Kaul, Ravindra Bhat, Hima Kohli, and PS Narasimha.
Same-Sex Marriage Case 2023:
This case started with Supriyo VS Union of India in November 2022. Supreme Court agreed to hear the plea even when many influential groups and political parties were against it. In January 2023 SC with a 3-judge bench, ordered all the cases related to the same-sex union must be transferred to the top court from Delhi and Kerala high courts. On 13 March, the Supreme Court transferred the case to a 5-judge bench considering the importance and sensitivity of the issue.
The first oral arguments were heard on 18 April, 2023 which concluded on 11 May after hearing both sides. Finally, after 5 months, the panel gave the verdict which disappointed a lot of people.
Statements in favor:
The petitioner’s lawyer Mohit Rohatgi started with the most basic argument about protecting various constitutional rights that every Indian shall have, despite of what gender they have. Articles like 14 (Equality), 15 (Non-Discrimination), 16 (Equality of Opportunity in Public Employment), 19 (Freedom of Speech), and 21 (Right to Life) were mentioned as a basis for the plea, especially Section 377 IPC which was removed after the ‘Navtej Singh Johar Case’ (2018) to decriminalize homosexuality.
Rohatgi highlighted the fact that if the Supreme Court passes the verdict in favor of homosexuals, it will lead to acceptance in society too. Another advocate Menaka Guruswami focused on the areas of pension and provident funds which can be enjoyed by the spouse only, which will be missing from the LGBTQ+ community.
The advocates majorly focused on gender-neutral treatment by the law. Advocate Jayna Kothari talked about how the right against discrimination on the basis of sex, gender, caste, religion, etc is being violated for homosexuals.
The petitioners want changes in SMA (Special Marriage Act) so that instead of recognizing husband and wife in a marriage, 2 spouses can be considered and accordingly all the people must be treated.
TPP Act, 2019:
Transgender Persons Protection Act which was passed after the 2014 NALSA judgement prohibits discrimination against transgenders in any sector like employment, health care, education, etc either by denial or treated unfairly. So as per this Act, advocates believe that the right to marriage has also been indirectly granted to homosexuals.
Advocate AM Singhvi said that this biased treatment by the government is spreading the wrong idea in the society that discrimination against Queer is normal and right. He also said that there is no scientific explanation for differentiating the legitimacy of marital bonds between homosexuals and heterosexuals. Society needs to avoid using “real marriage” for heterosexual couples.
Arguments against Same-Sex Marriage:
The opposition was against the idea of even hearing the case in the Supreme Court. But as the case got accepted in SC, they highlighted multiple reasons why same-sex marriage cannot be validated. Tushar Mehta, Solicitor General, stated the fact that around 160 laws would be impacted if this law is approved, which is a hectic procedure.
Also, the parties against the rights of homosexuals said that a decision that is related to the society and hence 1.4 billion people would be impacted, cannot be taken just by a 5-judge panel in the court. They advised the judiciary to let the legislature discuss this topic and then bring the law with majority votes.
As the petitioners asked to bring necessary changes in the Special Marriage Act, the adverse party argued that judiciary cannot change the meaning or characters written under the Act. The advocate quoted some lines from SMA that talked about certain rights given to the wife only. He questioned the judiciary on how those rights be given to a gay couple.
Concept of Motherhood:
ASG Aishwarya Bhati, from NCPCR body, specifically discussed the best interests of the children. She focused on the fact that the concept of genders may change, but the feeling of motherhood cannot. A child born from a relationship between a heterosexual couple needs the basic family architecture of mother and father. No other civil union bond can give the same satisfaction because it is not only about fulfilling materialistic requirements but also their emotional needs.
Adoption Rights to Homosexuals:
There were high hopes from the judiciary regarding giving adoption rights to the queer community which broke down in minutes. The CJI Chandrachud was in favor of considering adoption rights for homosexuals, and 3 judges from the panel gave negative responses to it. CJI had an opinion that no research has scientifically proven the fact that only heterosexual couples can be good parents and the court denied to assume so.
Supreme Court verdict:
The SC has denied legalizing same-sex marriages or giving adoption rights to homosexuals. However, they have issued guidelines for the government to make a separate committee on the issue and refer to this problem immediately. So now the decision will be made by the legislature, which will supposedly take another decade to formulate a law, considering the Indian political system.
SC has directed the center about various measures related to queer communities. Like, as ensuring fair treatment of homosexuals, convincing people to accept the LGBTQ+ community, preventing forcing people to undergo therapies or operations, etc. It also issues guidelines for the police to not abuse or harass these people to return to their families.