SC verdict on same sex marriages

SC verdict on same sex marriages

Subject: Polity

Section: Constitution

More about the news:

• A five-judge Supreme Court bench, led by Chief Justice DY Chandrachud, issued a unanimous ruling against legalizing same-sex marriage in India, also rejecting civil unions for non-heterosexual couples in a 3:2 verdict.
• They stated that Parliament should decide on the issue, emphasizing the inability of the court to alter provisions or interpretations of the Special Marriage Act.
• The petitions aimed for a gender-neutral reading of the Special Marriage Act to include same-sex marriages, but the majority view was that there is no fundamental right to marry.
• The court deliberated for ten days in April and May, considering various arguments related to equality, privacy, legal rights, and the impact on children.
• Opponents included the Central government, the NCPCR, and the Jamiat-Ulama-i-Hind.

What are the key takeaways from the verdict

• Right to marry not a fundamental right
  • All five judges on the Bench agreed that there is no fundamental right to marry under the Constitution.
• Not possible to tweak the Special Marriage Act (SMA), 1954
  • All five judges also unanimously agreed that it is not possible to tweak the Special Marriage Act ,1954 by using gender neutral language to allow same-sex marriage.
  • Alternatively, the petitioners had asked for striking down provisions of the SMA that are gender-restrictive.
  • CJI said striking down the SMA provisions would jeopardize the legal framework for interfaith and inter-caste couples.
  • He added that interpreting the SMA in a gender-neutral way would amount to judicial lawmaking, which would violate the doctrine of separation of powers.
• Declined to allow civil unions for non-heterosexual couples:
  • The bench ruled in a 3:2 verdict against civil unions for non-heterosexual couples.
  • The dissenting judges said that the right to form unions emanates from the fundamental right to freedom of speech and expression, and the right to life.
  • The minority views of the two judges held that the right to enter into a union cannot be restricted on the basis of sexual orientation.
  • Discrimination on the basis of sexual orientation is violative of Article 15 of the Constitution.
  • The majority views held that it was for the legislature, and not the Court, to formally recognise and grant legal status to non-heterosexual relationships.
• On the bouquet of rights
  • All five judges acknowledged that a high-level Cabinet committee will assess the rights for non-heterosexual couples, including joint bank accounts, beneficiary status in financial matters, and the ability to make medical decisions for one another.
• On rights to adopt children
• The Supreme Court unanimously recognized that one’s sexual orientation should not determine their suitability as adoptive parents.
• However, in a 3:2 split verdict, the existing regulations denying unmarried and queer couples the right to adopt children as a couple were upheld.
• Due to the inability for same-sex couples to marry under Indian law, they resorted to designating one partner as the legal parent, a practice subsequently addressed by the Central Adoption Resource Authority (CARA) in 2022.
• CARA imposed stricter regulations, requiring couples to be in a stable marital relationship for two years and prohibiting adoption for those in live-in relationships, thereby rendering queer couples ineligible to adopt.
• The minority view by CJI Chandrachud and Justice Kaul said the CARA guidelines discriminate against atypical, unmarried couples to adopt children.

What is Special Marriage Act:

• The Special Marriage Act of 1954 (SMA) provides an alternate route to religious laws for marriage.
•  It governs a civil marriage where the state sanctions the marriage rather than the religion.

Who can get married under the Special Marriage Act:

• The applicability of the Act extends to the people of all faiths, including Hindus, Muslims, Sikhs, Christians, Sikhs, Jains, and Buddhists, across India.
• The minimum age to get married under the Special Marriage Act is 21 years for males and 18 years for females.

What are the provisions of Special Marriage Act:

• As per Section 5 of the Act, the parties to the marriage are required to give a notice, in writing, to a “Marriage Officer” of the district in which at least one of the parties has resided for at least 30 days immediately preceding the notice.
• The parties and three witnesses are required to sign a declaration form before the Marriage Officer.
• Once the declaration is accepted, the parties will be given a “Certificate of marriage” which is essentially proof of the marriage