A five-judge bench, comprising Justice SK Kaul, Hima Kohli, SR Bhat, PS Narasimha and headed by Chief Justice of India- Justice Dhananjaya Yeshwant Chandrachud, delivered its verdict on the issue in question for a long; the Legality of same-sex marriage in India, on 17th October 2023. The bench found against the legalization of same-sex marriage in India by a majority verdict of 3:2, with all five judges agreeing that there is no fundamental right to marry.
Highlights of the Judgement:
- It is the responsibility of the Legislature Court to note that it is the obligation of the legislative body to create laws on this subject and leave the decision about same-sex marriage to be taken up by the Parliament.
- The dynamic aspect of matrimony- The Court argues that marriage is not a fixed idea and emphasizes that the Parliament has the authority to create legislation governing such unions.
- Court’s Limitation- Due to institutional limitations, the Court expresses that it is unable to repeal or modify the Special Marriage Act (SMA). According to this, only Parliament has the authority to decide whether same-sex marriage should be covered under the Special Marriage Act (SMA) or not.
- States can make their own laws verdict states that state legislatures can implement laws recognizing and regulating same-sex weddings in the absence of a federal law; the Constitution’s Articles 245 and 246 give both the Parliament and the State the authority to do so. “The State may choose from a number of policy outcomes; they may make all marriage and family-related laws gender neutral, or they may create a separate SMA-like statute in gender-neutral terms to give the queer community an avenue for marriage, they may pass an Act creating civil unions, or they may pass a domestic partnership legislation, among many other alternatives,” opined Justices Bhat and Kohli.
- Constitutional Grounding-Article 19 serves as the legal foundation for the right to union, and the court has recognized that choosing a life partner is a crucial aspect of an individual’s existence. This right extends to Article 21’s fundamental guarantee against discrimination against LGBTQ people.
- Formation of a Committee-A committee made up of experts is to be established by the Central Government under the direction of the Cabinet Secretary. This committee is responsible for carrying out in-depth interviews and taking particular factors into account-
- Enabling the recognition of LGBTQ people as a single entity for the purpose of ration cards.
- Assisting queer couples with joint accounts.
- Addressing difficulties with last rites as per rituals.
- Creating guidelines for pensions and succession for LGBTQ people.
The court concludes by declaring that there is no fundamental right to same-sex marriage. They claim the Parliament should make the choice because it is their responsibility to pass legislation on the matter. The court directs the creation of a committee to work out the practical issues, like ration cards and joint accounts, in order to pave the way for potential fair laws in the future. The court is aware that it cannot change the Special Marriage Act (SMA); only Parliament has the authority to do so.