Supreme court of India has rejected to legalize same sex marriage in India
SC judgement on same sex marriage
The constitutional bench of Supreme Court, in a 3:2 verdict, denied constitutional validity to same-sex marriages, as it is a statutory right but not a fundamental right. Therefore, its amatter for Parliament and state legislatures to address through legislation.
What is same sex marriage?
Same-sex marriage, also known as LGBTQ+ marriage, is a union between two individuals of the same gender. It grants them the same legal rights, benefits, and responsibilities as opposite-sex marriages
Supreme Court observations
| Key Question | Majority view | Minority view |
| Fundamental Right to Marry | Marriage is not a fundamental right | Marriage may not be a fundamental right in itself but has attained significance due to state regulation |
| Interpretation of Special Marriage Act (SMA) | SMA couldn’t be interpreted to include same-sex couples, as it’s intended for heterosexual couples of different faith | CJI Chandrachud was against an expansive reading of the SMA and warned against the court entering the realm of the legislature |
| Queer Couples’ Right to Adopt a Child | the Majority view upheld CARA regulation and said since ‘Same–sex couples’ marriage is not recognised they are not eligible for adoption | CJI Chandrachud struck down certain CARA regulations, stating they reinforce the disadvantage faced by the queer community |
| Civil Unions for Queer Couples | the Majority view disagreed with prescribing a choice of civil unions but suggested the state should facilitate this choice for those who wish to exercise it. | The CJI saw the right to form intimate associations as part of freedom of speech and expression and suggested a committee to determine the rights available to queer couples in unions. |
What is the Special Marriage Act (SMA) 1954?
Marriages in India can be registered under the respective personal laws (e.g., Hindu Marriage Act, 1955, Muslim Personal Law Application Act, 1937) or under the Special Marriage Act, 1954.
The Special Marriage Act, 1954 has provisions for civil marriage for people of India and all Indian nationals in foreign countries, irrespective ofreligion or faith followed by either party.
When a person solemnises marriage under this law, then the marriage is not governed by personal laws but by the Special Marriage Act.
What is a ‘Civil Union’?
A ‘civil union’ grants legal rights and responsibilities to same-sex couples similar to marriage but a civil union lacks the same recognition in personal law. US, Sweden, etc. had recognised civil union until same-sex marriagewas legalised in their country
Earlier ruling of court:
NALSA (2014):
Recognition of transgenders as third gender
K.S. Puttaswamy (2017):
Recognition of the right to sexual orientation as an aspect of privacy
Shafin Jahan vs Asokan K.M.:
The right to marry isintrinsic to the liberty guaranteed by the Constitution as a fundamental right, allowing individuals to make decisions crucial to their pursuit of happiness.
Navtej Singh Johar Case (2018) :
Decriminalized Homosexuality. Members of the LGBTQ community are entitled to thefull range of constitutional rights, including liberties protected by the Constitution. They are entitled to equal citizenship and “equal protection of law.”
Way Forward:
Raising awareness for LGBTQIA+ rights, legal reforms like amending the Special Marriage Act, to include same sex marriage in the ambit of the Act. engaging in dialogue with religious leaders and collaboration among all stakeholders for a more inclusive society.