In a ruling issued on Tuesday, the India Supreme Court held that there is no fundamental right for same-sex couples to marry. The decision rendered by a five-judge bench, led by the Chief Justice of India Dhananjaya Yeshwant Chandrachud, rejected the recognition of same-sex marriages and civil unions for non-heterosexual couples.
The ruling came on the heels of a series of petitions related to same-sex marriages in the country. The verdict was split 3-2. Earlier this year, the court decided to form a special constitutional bench to consider these petitions.
Petitioners argued that the right to marry, for both heterosexual and non-heterosexual couples, is implicit in the Constitution of India’s fundamental rights, which are outlined in the Constitution’s various articles. They suggested that the non-recognition of same-sex marriages violated these constitutional rights.
Notably, petitioners referenced the judgements in Navtej Singh Johar v. Union of India, which decriminalised same-sex relationships, and K.S Puttuswamy v. Union of India, which upheld the fundamental right to privacy, to substantiate their claims.
Despite a difference in opinion regarding the recognition of civil unions for non-heterosexual couples, the bench unanimously ruled that there is no fundamental right to marry. Consequently, decisions about same-sex marriage now fall within the purview of the legislature.
The petitioners’ request for changes to the Special Marriage Act, 1954 was also denied. They had proposed changes to the wording of the act to replace ‘man and woman’ with ‘spouses.’ However, the court ruled that it could neither strike down nor rewrite provisions of the act due to limitations on the court’s powers.
Despite the majority ruling against the legal recognition of non-heterosexual unions, the minority judgement was in favour of state-recognized unions of non-heterosexual couples with the person of their choice. The court also found Regulation 5(3) of the Central Adoption Resource Authority Regulations to be in violation of the constitution as it prohibits unmarried and queer couples from adopting children.
In a minor concession, Justice Ravindra Bhat, speaking for the majority, has asked the Union to form a High Powered Committee to examine queer concerns and related policy changes. However, he ruled against the recognition of civil unions for non-heterosexual couples. Justice Bhat also disagreed with the majority on the issue of adoption, arguing against the right of non-heterosexual couples to jointly adopt.
As per Jurist.org, this verdict further consolidates the legal position that decisions regarding same-sex marriage falls within the domain of the legislature, not the judiciary.