In a pivotal decision on October 17, 2023, the Supreme Court of India unanimously decided against modifying the Special Marriage Act (SMA), 1954, to encompass non-heterosexual unions. This move effectively denies legal recognition for queer marriages in India, sparking a wave of reactions and discussions.
Senior Advocate Geeta Luthra, reflecting on the global trend of accepting same-sex marriages, stated,
“You are seeing it (recognition of same-sex marriage) in various parts of the progressive world. It has become a way of life. Now we, in India, can’t close our eyes particularly because traditionally we’ve been a very tolerant society.”
She further elaborated on the broader implications of the right to live, stating,
“Just sometimes that right to live is not only a right to live unhampered by others or by criminality, it is also a way to live with dignity and rights. This is what they were looking for. The right to have a family, the right to bring up children, the right to adopt children, such that the other partner can call the child also their child.”
Chief Justice DY Chandrachud voiced his disagreement with the Central government’s perspective that courts examining LGBTQ+ rights would be anti-democratic. He challenged this view, asserting,
“If all decisions of the elected wing of the State are considered to be democratic decisions purely because of the manner in which it is vested with power, what then, is the purpose of the fundamental rights and the purpose of vesting this Court with the power of judicial review?”
He further clarified his stance, adding,
“The Constitution does not confine the universe of a constitutional democracy to an electoral democracy. Other institutions of governance have critical roles and functions in enhancing the values of constitutional democracy.”
The complexities associated with amending the SMA to include queer marriages were highlighted by several justices. CJI DY Chandrachud pointed out the interconnectedness of the SMA with other laws, emphasizing that even the petitioners had to submit lengthy charts on the workability of reading down the SMA. Justice Sanjay Kishan Kaul, in his judgment, also mentioned that the entitlements resulting from marriage were spread out across a
“proverbial ‘spider’s web’ of legislations and regulations,”
suggesting that altering the scope of marriage under the SMA could lead to a “cascading effect” across various laws.
On the constitutionality of the SMA, while Justice Kaul believed it was unconstitutional as it violated Articles 14 and 15 of the Indian Constitution, Justice Bhat, with Justice Kohli concurring, argued that the SMA’s original intent was to enable inter-faith marriages as understood in 1954. Justice Ravindra Bhat stated,
“There was no idea to exclude non-heterosexual couples, because at that time, even consensual physical intimacy of such persons, was outlawed by Section 377 IPC.”
Justice Bhat also explored the challenges of interpreting the SMA in gender-neutral terms. He argued that such an interpretation might expose women to unintended vulnerabilities, given that terms like ‘wife,’ ‘husband,’ ‘man,’ and ‘woman’ in marriage laws were designed to protect socially marginalized individuals.
Nundy, reflecting on the judgment, noted that while some judges recognized the aspects of marriage rooted in various fundamental rights, the consensus was that recognizing marriage was a legislative matter. She emphasized,
“So the onus is now on the Central government to form a committee and examine and protect the rights of queer couples and civil unions.”
In sum, the Supreme Court’s decision has ignited debates and discussions, emphasizing the need for the Central and state governments to legislate in favor of the rights and dignity of queer citizens in India.
Also read- Supreme Court Directs End To Queer Discrimination: A Comprehensive Overview (lawchakra.in)
