Title: Indian Supreme Court’s Verdict on Same-Sex Marriage Highlights Legal Challenges
Subtitle: Ruling underscores the need for comprehensive legal reforms to support LGBTQ+ rights
Date: October 17, 2023
Contributors: Aditya Prasanna Bhattacharya, Surbhi Sachdeva
In a highly anticipated decision, the Indian Supreme Court delivered its verdict on a case filed by two same-sex couples in November 2022. The couples argued that the inability to marry under the Indian Family Code violated their fundamental rights, including equality, life and liberty, dignity, and freedom of speech and expression.
After a 10-day hearing, the Supreme Court adjourned its judgment to May 2023, and today, on October 17, the final verdict was announced. Unfortunately, the ruling does not grant same-sex couples the right to marry or enter civil society.
The court’s decision hinged on the interpretation of whether marriage is a fundamental right under the Indian Constitution and if it is discriminatory to deny it to same-sex couples. The five-judge bench, with Justices S. Ravindra Bhatt, Hima Kohli, and PS Narasimha in the majority opinion, and Chief Justice of India DY Chandrachud and Justice Sanjay Kishan Kaul in the minority opinion, unanimously concluded that the right to marry is not a fundamental right.
The court further stated that unless the law explicitly allows same-sex couples to marry, they have no right to participate in the institution of marriage. The Special Marriage Act, 1954, which formed the basis of the proceedings, currently only permits marriages between a ‘male’ and a ‘female’.
Moreover, the majority opinion judges also ruled against granting same-sex couples the right to enter civil society, which would provide legal rights and protections similar to marriage. They argued that such a change would require extensive legislative intervention due to the complex nature of reconciling existing constitutional structures and policies.
Another important issue addressed in the verdict was the adoption rights of same-sex couples. While same-sex partners cannot legally adopt children as a couple, the court recognized that a person can adopt as an individual. However, recent restrictions imposed by the Central Adoption Resources Authority (CARA) made it difficult for same-sex couples to adopt, leading the petitioners to question the constitutionality of these provisions.
Ultimately, the court placed the responsibility on the administration to review and revise adoption laws in the best interests of the children involved, instead of ruling on the legality of same-sex couples adopting children.
The ruling has disappointed many in the LGBTQ+ community who had hoped for a more inclusive approach to marriage rights and legal recognition. It has been argued that the judgment fails to fully acknowledge the discrimination faced by same-sex couples and the disproportionate exclusion they experience within family law.
Rather than taking definitive action, the court has directed the government to establish a committee, headed by the Cabinet Secretary, to study the existing legal framework and propose amendments that will make the benefits of marriage accessible to same-sex couples.
However, bringing about these changes will require significant legal and social reforms, including amending existing laws and overcoming practical challenges. The involvement of all stakeholders, including the LGBTQ+ community, religious representatives, and government officials, will be crucial in this deliberative exercise.
While the ruling is seen as a setback for the gay community, it has highlighted the need for comprehensive legal reforms to ensure equality, justice, and protection of LGBTQ+ rights in India. It calls on the Legislature to take the lead in reevaluating and improving the Indian Family Code to make it more inclusive and non-discriminatory.
The decision emphasizes that the struggle for equal rights for the LGBTQ+ community is far from over, and the path ahead requires a collective effort to bring about positive change.