Right To Marry, SMA, Adoption: 7 Key Takeaways From Marriage Equality Judgment

The Quint glanced through the 366-page judgment so you don't have to – and here are the major takeaways.

In its judgment against legalising same-sex marriages in India, the five-judge constitutional bench of the Supreme Court also made a significant observation – that state legislatures are free to enact laws recognising and regulating same-sex marriage "in the absence of any central law."

While the judgment directed the Centre to form a committee "for the purpose of defining and elucidating the scope of the entitlements of queer couples who are in unions," it didn't specify the timeframe for its constitution.

The 366-page judgment delivered by Chief Justice of India DY Chandrachud and Justices SK Kaul, SR Bhat, Hima Kohli, and PS Narasimha touches upon various matters – including whether the right to marry can be considered a fundamental right, whether queer couples can adopt, and whether a non-heterosexual civil union is plausible.

The Quint deep-dived into the judgment so you don't have to – and here are the major takeaways.

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No Fundamental Right To Marry

All five judges unanimously agreed that "there is no fundamental right to marry."

"The Constitution does not expressly recognise a fundamental right to marry. An institution cannot be elevated to the realm of a fundamental right based on the content accorded to it by law. However, several facets of the marital relationship are reflections of constitutional values, including the right to human dignity and the right to life and personal liberty," the CJI said in his judgment, seconded by Justice Kaul.

Justice Bhat added that "there is no unqualified right to marriage except that recognised by statute, including space left by custom." A statutory right is that provided for by any laws passed by Parliament.

Justices Kolhi and Narasimha also agreed.

"The right to marriage is a statutory right, and to the extent it is demonstrable, a right flowing from a legally enforceable customary practice. In the exercise of such a right, statutory or customary, the State is bound to extend the protection of law to individuals, so that they can exercise their choices without fear and coercion."

Justice Narasimha

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Can't Strike Down SMA

The bench was in agreement when it said it cannot strike down the constitutional validity of the Special Marriages Act of 1954. The CJI said the court also cannot "read words into the SMA because of its institutional limitations."

"The Court, in the exercise of the power of judicial review, must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain," he added.

But the CJI and Justice Kaul disagreed with Justice Bhat's observation "that the sole intention of the SMA was to enable marriage of heterosexual couples exclusively."

"Bhat J has held that ... the object of the SMA was to enable inter-faith heterosexual marriage ... (and that) it does not discriminate against queer persons," CJI Chandrachud pointed out, adding:

"My learned brother contradicts himself when he holds that the SMA is not discriminatory by relying on its object, on the one hand, and that the state has indirectly discriminated against the queer community because it is the effect and not the object which is relevant, on the other."

Justice Kaul seconded, saying: "If the intent of the SMA is to facilitate inter-faith marriages, then there would be no rational nexus with the classification it makes, i.e., excluding non-heterosexual relationships."

However, Justice Kaul – like the CJI – recognised "that there are multifarious interpretive difficulties in reading down the SMA to include marriages between non-heterosexual relationships."

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Freedom To Be in a Civil Union

While both the CJI and Justice Kaul were against legalising queer marriages, they were in favour of "the freedom of all persons, including queer couples, to enter into a union."

"The state has an obligation to recognise such unions and grant them benefit under law," the CJI said.

"The right to enter into a union cannot be restricted based on sexual orientation. Such a restriction will be violative of Article 15. Thus, this freedom is available to all persons regardless of gender identity or sexual orientation."

Justice Kaul said: "Non-heterosexual unions and heterosexual unions/marriages ought to be considered as two sides of the same coin, both in terms of recognition and consequential benefits. The only deficiency at present is the absence of a suitable regulatory framework for such unions."

However, Justice Bhat stated that an entitlement to legal recognition of the right to union – akin to marriage or civil union, or conferring legal status upon the parties to the relationship can be only through enacted law. "A sequitur of this is that the court cannot enjoin or direct the creation of such regulatory framework resulting in legal status," he added.

Justices Narasimha and Kohli agreed.

Queer Couples Can't Adopt

In a significant observation, the CJI – who was the first to read out the judgment – said that "unmarried couples (including queer couples) can jointly adopt a child," and that "the CARA [Central Adoption Resource Authority] Circular disproportionately impacts the queer community and is violative of Article 15."

However, the majority judgment of Justice Bhat stated that the CARA Regulations "cannot be held void."

"At the same time, this Court is of the considered opinion that CARA and the central government should appropriately consider the realities of de facto families, where single individuals are permitted to adopt and thereafter start living in a non-matrimonial relationship," Justice Bhat said.

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Formation of Committee

The Supreme Court also directed the central government to constitute a high-powered committee chaired by the Cabinet Secretary "for the purpose of defining and elucidating the scope of the entitlements of queer couples who are in unions" as well as "to undertake a comprehensive examination of all relevant factors."

"The Committee shall include experts with domain knowledge and experience in dealing with the social, psychological, and emotional needs of persons belonging to the queer community as well as members of the queer community," CJI Chandrachud said.

This was in line with what the Centre's counsel had stated during the proceedings in May.

States Free To Enact Law

Interestingly, Justice Bhat noted in the postscript of his judgment – which is also signed by Justice Kohli – that "that rather than the Union Government, the State legislatures" can take action and enact a "law or frameworks, in the absence of a central law" with respect to queer marriages.

CJI Chandrachud also stated that "under Articles 245 and 246 of the Constitution read with Entry 5 of List III to the Seventh Schedule, it lies within the domain of Parliament and the state legislatures to enact laws recognising and regulating queer marriage."

"Entry 5 of the Concurrent List of the Seventh Schedule to the Constitution grants both the state legislature and Parliament the power to enact laws with respect to marriage," he further explained.

Trans People's Right To Marry

The bench was in agreement on another count as well – that "transgender persons in heterosexual relationships have the freedom and entitlement to marry under the existing statutory provisions."

"Transgender persons in heterosexual relationships can marry under existing law. We are in agreement with the submission of the Union of India that the issue of whether transgender persons can marry ought to be decided separately from the issues arising under the SMA in relation to homosexual persons or those of a queer sexual orientation."

CJI Chandrachud

This, in other words, means that trans men can legally marry trans women or cisgender women and that trans women can legally marry trans men or cisgender men – and this right already exists.

However, trans-non-binary persons cannot legally marry or have a legally recognised civil union.

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