While the government’s attempt to deny a fundamental right to the LGBTQIA+ community in India is deeply disheartening, it is even more heartbreaking to witness the Supreme Court of India refusing to recognise the right of same-sex couples to enter into marriages or have civil unions.

The words spoken by the Chief Justice of India stated that “In the absence of a law which cast a duty on the state to provide transportation through roads, a citizen can’t approach the court and seek the construction of the road to enforce the right to move freely“, felt like a mockery of the LGBTQIA+ community.

It is interesting to note that the same Chief Justice of India who made remarks about there not being an absolute concept of man or woman has now issued a verdict on marriage equality for transgender individuals. This decision allows them to marry if they choose to do so, just like their heterosexual counterparts. The irony of this situation is certainly thought-provoking.

Even Justin Bhat himself acknowledged that courts often enable and oblige the state to take measures. He also comes to the conclusion that the state indirectly discriminates against the queer community but fails to exercise the power vested in this court to ban Article 32 and alleviate this discrimination.

This ruling has created a whirlwind of opinions and emotions across the nation. However, it is important for us to take a closer look at the intricacies of this decision and understand the perspectives presented by the honourable judges. By examining both majority and minority opinions, we can gain a comprehensive understanding of the complexities surrounding LGBTQ+ rights in India.

A Unified Decision, Yet Divergent Voices:

The judgment was rendered by a Constitution Bench composed of Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha. The Bench dedicatedly delivered four separate judgements, each offering its own unique perspective.

In this case, Justices Bhat, Kohli, and Narasimha delivered the majority opinion, with Justice Narasimha also providing a separate concurring opinion. We should also acknowledge that CJI Chandrachud and Justice Kaul expressed their dissenting views through separate judgements.

All the judges reached a consensus that there is no absolute right to marriage, and same-sex couples cannot assert it as a fundamental right. The Court, in complete agreement, dismissed the challenge to the provisions of the Special Marriage Act. Additionally, the majority of Justices Bhat, Kohli, and Narasimha maintained that civil unions between same-sex couples are not legally recognised and that they do not have the right to adopt children either.

All the judges were unanimous in holding that there is no unqualified right to marriage and same-sex couples cannot claim that as a fundamental right

Key Takeaways from the Majority Opinion:

Rendered by Justice Ravindra Bhat, he held the following:

1. There is no unqualified right to marriage.
2. Entitlement to civil unions can be only through enacted laws and courts cannot enjoin such creation of a regulatory framework.
3. Queer persons are not prohibited in celebrating their love for each other, but have no right to claim recognition of such union.
4. Queer persons have the right to choose their own partner and they must be protected to enjoy such rights.
5. Same-sex couples do not have right to adopt children under existing law.
6. Central government shall set up a high-powered committee to undertake study of all relevant factors associated with same-sex marriage.
7. Transgender persons have the right to marry.

The Court in its minority opinion, held that queer couples have a right to enter into civil unions, though they do not have the right to marry under the existing laws.

The Minority Opinion:

In a truly remarkable contrast, CJI Chandrachud and Justice Kaul, in their distinct minority opinions, have expressed a deeply empathetic stance. They have put forward their belief that same-sex couples should be granted the right to acknowledge their relationships through civil unions and reap the associated benefits. Furthermore, they have unwaveringly supported the right of such couples to adopt children, while vehemently denouncing adoption regulations that impose unnecessary restrictions on them. Their empathetic approach signifies a step towards a more inclusive society where everyone’s love and relationships are acknowledged, respected, and protected.

Key Takeaways from the Minority Opinion:

1. Queerness is not urban or elite.
2. There is no universal concept of marriage. Marriage has attained the status of a legal institution due to regulations.
3. The Constitution does not grant a fundamental right to marry and the institution cannot be elevated to the status of a fundamental right.
4. Court cannot strike down provisions of the Special Marriage Act. It is for Parliament to decide the legal validity of same-sex marriage. Courts must steer clear of policy matters.
5. Freedom of queer community to enter into unions is guaranteed under the Constitution. Denial of their rights is a denial of fundamental rights. Right to enter into unions cannot be based on sexual orientation.
6. Transgender persons have the right to marry under existing law.
7. Queer couples have the right to jointly adopt a child. Regulation 5(3) of the Adoption Regulations as framed by the Central Adoption Resource Authority (CARA) is violative of Article 15 of the Constitution for discriminating against the queer community.
8. Centre, states, union territories shall not bar queer people from entering into unions to avail benefits of the state.

CJI directs the Centre to:

1. Ensure queer community is not discriminated against.
2. Ensure there is no discrimination in access to goods and services.
3. Sensitise the public about queer rights.
4. Create a hotline for the queer community.
5. Create safe houses or Garima grih for queer couples.
6. Ensure inter-sex children are not forced to undergo operations.
7. No person shall be forced to undergo any hormonal therapy.

He also issues guidelines to the police to not harass queer people or force them to return to their natal families.

Moving Forward:

The Supreme Court’s decision underscores the intricate nature of the issue of same-sex marriage and civil unions in India. While the majority opinion entrusts the matter to the legislature, the minority opinion passionately advocates for more inclusive policies and safeguarding the rights of the LGBTQ+ community.

As we look ahead, it becomes apparent that there is a profound and urgent need for a compassionate committee to deeply explore the various facets surrounding same-sex marriage. The varying commitment of the government to empower LGBTQ+ couples to fully exercise their rights fills our hearts with a descending sense of hope and empathy.

The struggle for LGBTQ+ rights is far from over.