Same-sex marriages

A five-judge Constitution Bench of the Supreme Court has refused to grant legal recognition to same-sex marriages, and rightly so. Chief Justice of India DY Chandrachud, who was heading the Bench, said: ‘This court can’t make law. It can only interpret it and give effect to it,’ adding that the onus was on Parliament to amend the Special Marriage Act (SMA). At the same time, the court has made it clear that the judgment will not preclude the right of members of the LGBTQIA+ (lesbian, gay, bisexual, transgender, queer, intersex and asexual) community to enter into relationships. The SC has directed the Centre, states and union territories to ensure that the community is not discriminated against, even as the Union Government has decided to form a committee which will deliberate on the rights and entitlements of persons in queer unions.

Predictably, the contentious matter caused disagreement among the judges on some aspects. Justice S Ravindra Bhat said the court could not put the State under any obligation when there was no constitutional right to marry or legal recognition of unions among non-heterosexual couples. Justice Sanjay Kishan Kaul disagreed with Justice Bhat’s contention that the SMA was passed solely to allow for heterosexual marriages. ‘Legal recognition of non-heterosexual unions is a step towards marriage equality,’ Justice Kaul said. There was also no concurrence on the right of queer couples to adopt children.

Though the court has not given same-sex couples the legal nod to marry, the majority verdict has underscored the dire need to protect them from discrimination, harassment and mockery. Union and state governments have a key role to play in sensitising the public about the rights of this vulnerable section of society. And it is up to the legislature to create a legal framework for queer couples. Whether lawmakers are sincere about empowering the LGBTQIA+ community will be known in due course.