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Key Highlights About Same Sex Marriage and Supreme Court Verdict Oct 2023 In INDIA | The Amit Gahlyan

Key Highlights About Same Sex Marriage and Supreme Court Verdict Oct 2023 In INDIA | The Amit Gahlyan

# Same-Sex Marriage Verdict in India: Key Highlights and Implications

  • On October 17, 2023, the Supreme Court of India delivered a landmark verdict on the issue of same-sex marriage in the country. The verdict was awaited with much anticipation and anxiety by the LGBTQIA+ community and their allies, as well as by the opponents of marriage equality. The verdict has significant implications for the legal and social status of queer persons in India, as well as for the future of the movement for LGBTQIA+ rights.

## What did the Supreme Court say?

  • The Supreme Court, in a unanimous verdict, rejected petitions seeking same-sex marriage in India, and refused to tweak provisions of the Special Marriage Act (SMA), which governs civil marriages in the country. The matter was decided by a five-judge Constitution Bench, headed by Chief Justice of India D Y Chandrachud. All five judges agreed that there was no fundamental right for non-heterosexual couples to marry, with the majority view being that the legislature must decide on the issue of same-sex marriage.
  • However, the judges differed on whether same-sex couples have a right to enter into civil unions, which are legally recognised partnerships that grant some rights and benefits similar to marriage. CJI Chandrachud and Justice Sanjay Kishan Kaul said that the right of same-sex couples to enter civil unions flows from Part 3 of the Constitution, which guarantees fundamental rights such as equality, dignity, privacy and expression. They also issued a slew of directions and guidelines to the Centre and police forces, in order to prevent discrimination and harassment against the queer community.
  • On the other hand, Justices S Ravindra Bhat, Hima Kohli and P S Narasimha said that civil unions are also possible only through specific law enacted by Parliament, and that the court cannot read into existing laws or create new rights. They also expressed reservations about interfering with personal laws governing marriages among different religious communities.

## Why did the Supreme Court reject same-sex marriage?

  • The Supreme Court based its rejection of same-sex marriage on two main grounds: one, that marriage is a social institution that is defined by historical, cultural and religious norms; and two, that marriage is a matter of policy that falls within the domain of Parliament, not the judiciary.
  • The court said that marriage is not just a contract between two individuals, but a relationship that has implications for society at large. It said that marriage involves various aspects such as procreation, succession, inheritance, adoption, maintenance and divorce, which are governed by different laws for different communities. It said that changing the definition of marriage to include same-sex couples would have far-reaching consequences for these laws and for the social fabric of the country.
  • The court also said that marriage is a matter of policy that requires legislative deliberation and public consultation. It said that Parliament is the appropriate forum to debate and decide on such issues, taking into account the views and interests of all stakeholders. It said that the court cannot legislate or impose its views on such matters, as it would amount to judicial overreach and encroachment on parliamentary sovereignty.

## What are civil unions and what rights do they entail?

  • Civil unions are legally recognised partnerships that grant some rights and benefits similar to marriage, but not all. Civil unions are different from marriages in terms of their legal status, social acceptance and religious sanctity. Civil unions are also not uniform across countries or states; they may vary in terms of their scope, eligibility and procedure.
  • In India, there is no specific law governing civil unions. However, CJI Chandrachud and Justice Kaul held that same-sex couples have a right to enter into civil unions under Part 3 of the Constitution. They said that civil unions are a form of expression of one's identity and choice of partner, which are protected by Article 19(1)(a) of the Constitution. They also said that civil unions are a manifestation of one's dignity and autonomy, which are guaranteed by Article 21 of the Constitution.
  • They directed the Centre to frame guidelines for registration and recognition of civil unions within six months. They also directed all states and union territories to facilitate such registration and recognition without any discrimination or harassment. They further directed all authorities to extend all benefits available to married couples under various laws and schemes to civil union partners as well.

Some of these benefits include:

- The status of spouse in finance and insurance issues
- Medical, inheritance and succession decisions
- Adoption rights
- Maintenance rights
- Tax benefits
- Pension benefits
- Visa benefits
- Domestic violence protection

## What are the implications of the verdict for LGBTQIA+ rights in India?

  • The verdict has both positive and negative implications for LGBTQIA+ rights in India. On one hand, it is a setback for the movement for marriage equality, which has been a long-standing demand of many queer activists and organisations. It also reflects the conservative and heteronormative views of the judiciary and the society on the issue of marriage. It also leaves the fate of same-sex marriage to the mercy of Parliament, which may not be inclined or willing to enact a law on it.
  • On the other hand, the verdict is a step forward for the recognition and protection of queer relationships and identities in India. It upholds the constitutional rights of same-sex couples to enter into civil unions, which grant them some legal and social benefits. It also issues guidelines to prevent discrimination and harassment against the queer community, and to ensure their access to education, employment, health care and other services. It also reaffirms the 2018 judgment of the Supreme Court that decriminalised consensual homosexual acts under Section 377 of the Indian Penal Code.

The verdict, therefore, is a mixed bag for LGBTQIA+ rights in India. It is not a complete victory, but neither is it a total defeat. It is a partial and incremental progress, which leaves room for further struggle and hope.

Case Title: Supriyo v. Union of India | Writ Petition (Civil) No. 1011 of 2022 + connected matters 

Citation : 2023 LiveLaw (SC) 900

To Read The Judgement Cick Here

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