Key updates from the Supreme Court about the LGBT verdict so far.
- OCTOBER 17, 2023 12:16Justice Kaul’s judgment: In a nutshell
Justice Kaul used the term “civil union” for non-heterosexual relationships. They should not suffer any form of discrimination, he said.
He agreed with the CJI that the government should form a committee headed by the Cabinet Secretary to look into entitlements for same-sex couples.
Justice Kaul held that same-sex unions are entitled to protection under a constitutional scheme.
Justice Kaul, however, disagreed with the petitioners that the Special Marriage Act was discriminatory. He says it provides a secular framework.
- OCTOBER 17, 2023 12:14There is a paradox that runs deep in the court’s mind and the intervention of the state has to be through state action and be compelled by the agency of this court: Justice Bhat
Justice Bhat, reading his judgment said there is a paradox that runs deep in the court’s mind, and intervention of the state has to be through state action and be compelled by the agency of this court.
He said the judgment of the CJI propounded a theory of a unified thread of rights and how lack of recognition violated rights. “However, when the law is silent, Article 19(1)(a) does not compel the State to enact a law to facilitate that expression,” he said.
He cites how the limited liability partnership (live-in relationship) was not recognized until recently. The court could not have compelled the state to create a law to recognize such an association.
While we agree that there is a right to a relationship, we squarely recognize that it falls within Article 21, he said.
- OCTOBER 17, 2023 11:52Justice Raveendra Bhat disagrees with the Chief Justice but concurs with the opinion of Justice Narasimha
Justice Bhat, reading out his judgment, said he does not particularly subscribe to the views of the Chief Justice on democratizing intimate spaces. “These outcomes were brought by Legislative acts,” he said.
“Marriage is a social institution. The marital status is not conferred by the state. The idea of marriage is not a fundamental right,” he said.
- OCTOBER 17, 2023 11:48Legal recognition of non-heterosexual unions is a step towards marriage equality: Justice Kaul
Justice Kaul, concluding his judgment said a legal recognition of non-heterosexual unions is a step towards marriage equality. “Let us preserve the autonomy so long as it does not impinge on others’ rights.,” he said.
He further added that non-heterosexual unions and heterosexual unions must be seen as two sides of the same coin.
He suggested enacting an anti-discrimination law that addresses intersectional discrimination.
- OCTOBER 17, 2023 11:46Justice Kaul disagrees with Justice Bhat on the Special Marriage Act
Disagreeing with Justice Bhat’s statement on the Special Marriage Act, Justice Kaul said the Special Marriage Act is violative of Article 14. “However, there are interpretative limitations in including homosexual unions in it. As rightly pointed out by the SG, tinkering with the SMA can have a cascading effect.”
- OCTOBER 17, 2023 11:41Same-sex relationships have been recognized from antiquity, not just for sexual activities but as relationships for emotional fulfillment: Justice Kaul
Agreeing with the CJI’s judgment, Justice Kaul said same-sex relationships have been recognized from antiquity, not just for sexual activities but as relationships for emotional fulfillment. He quotes the Rig Veda and Sufi traditions.
- OCTOBER 17, 2023 11:41CJI, in his opinion, concludes that court can neither strike down nor read words into the SMA
The CJI concluded that the court can neither strike down nor read words into the SMA to include same-sex members within the ambit of the 1954 law.
The CJI said we record the statement of the Solicitor General that the Union Government will constitute a committee to decide the rights and entitlements of persons in queer unions.
He said the committee shall consider including queer couples as a family in ration cards, enabling queer couples to nominate for a joint bank account, rights flowing from the pension, gratuity, etc.
- OCTOBER 17, 2023 11:36Unmarried couples, including queer couples, can jointly adopt a child: CJI
- OCTOBER 17, 2023 11:36Transgender persons in heterosexual relationships have the right to marry under the existing laws including personal laws: CJI
- OCTOBER 17, 2023 11:35Queer is a natural phenomenon known to India for ages; It is neither urban nor elitist: CJI.
- OCTOBER 17, 2023 11:34Police should not force queer persons to return to their families if they do not wish to: CJI
The CJI, issuing directions to the police department, said there shall be no harassment of queer community by summoning them to the police station solely to enquire about their sexual identity. “The police should not force queer persons to return to their family if they do not wish to.”
- OCTOBER 17, 2023 11:29Ensure that queer community is not discriminated against because of their identity, direct CJI
Issuing directions to end discrimination, the CJI directs the Union Government, State Governments, and Union Territories to ensure there is no discrimination in access to goods and services.
The CJI also directs to sensitize the public about queer rights, to create a hotline for the queer community, to create safe houses for queer couples, and to ensure inter-sex children are not forced to undergo operations.
- OCTOBER 17, 2023 11:26CJI Chandrachud contradicts with Justice Bhat
Disagreeing with Justice Bhat’s judgment, the CJI says: Justice Bhat says that when there is no right to create a road, the person cannot come to court about the road construction.
Justice Bhat has recognized that courts often create such measures, the court is not creating an institution by a judicial diktat but is only recognizing the entitlements that flow by recognizing a heterosexual union.
- OCTOBER 17, 2023 11:24Adoption regulations are violative of Article 15, discriminatory to queer community: CJI
Adoption regulations are violative of Article 15, and it is discriminatory to the queer community, the CJI said.
It is discrimination that CARA regulations limit a queer person to adopt in an individual capacity and not jointly adopt with a partner because their relationship does not have the legal status of marriage, he said.
- OCTOBER 17, 2023 11:20“There is no proof to show children are safer only with married heterosexual parents”
Speaking on adoption rights in the country, the CJI said there is no proof to show that children are safer only with married heterosexual parents. “Marriage alone does not give stability to a household,” he said.
The CARA regulations bar unmarried partners from adopting. They can adopt as individuals but not as partners. The adoption regulations use marriage as a criterion, merely because marriage is regulated by law. It does not mean the relationship is stable, observes the CJI.
- OCTOBER 17, 2023 11:16Gender is not the same as their sexuality: CJI
The Chief Justice on Tuesday said the gender of a person is not the same as their sexuality.
If a transgender person is in a heterosexual relationship, such a marriage is recognized by the law, he said.
- OCTOBER 17, 2023 11:14“Choosing a life partner integral to right to life”
CJI Chandrachud said choosing a life partner is integral to the right to life, and the ability to choose a partner to build a life is integral.
- OCTOBER 17, 2023 11:13Formal recognition of the relationship by the State necessary to avail benefits of society: CJI
The Chief Justice, reading the judgment, said, the formal recognition of a relationship by the State is necessary to avail benefits of society.
Building a life includes the right to choose a partner, he said.
- OCTOBER 17, 2023 11:12The right to enter into a union includes the right to choose one’s partner and the right to recognition of that union: CJI
The CJI on Tuesday said that the right to enter into a union includes the right to choose one’s partner and the right to recognition of that union.
The right to enter into a union is included in Article 19 (1)(e), he said.
“Equality demands queer unions should not be discriminated against. Material, economic, and social benefits should be available to same-sex couples as others,” he added.
- OCTOBER 17, 2023 11:10If the Special Marriage Act is struck down, it will take the country to the pre-Independence era: CJI
Reading the judgment on Tuesday, the CJI said if the Special Marriage Act is struck down, it will take the country to the pre-Indpendence era. Weaving words into the SMA would amount to entering the realm of the legislature. The court is not equipped to do that.
- OCTOBER 17, 2023 11:08The court has not gone into any other laws except the Special Marriage Act: D.Y. Chandrachud
It’s the Parliament’s decision if it wants to bring about a change in the Special Marriage Act. The court has not gone into any other laws except the Special Marriage Act, the CJI said.
- OCTOBER 17, 2023 11:03The state can intervene to democratize private space: CJ Chandrachud
The CJI said all that happens in a private space cannot be categorized as outside the state ambit. “State can intervene to democratize private space,” he added.
- OCTOBER 17, 2023 11:02The legislature and not activism brought a change in society: CJI
The Chief Justice said the Legislature and not activism brought a change in the society. “The institution of marriage has undergone a sea of change, and the idea of marriage is not static,” he said.
- OCTOBER 17, 2023 11:00Homosexuality or queerness is not an urban concept, says CJI’s judgment
CJI Chandrachud said homosexuality or queerness is not an urban concept or restricted to the upper classes of society. “To say that queer people exist only in urban and elite spaces is to erase them. It is not an English-speaking man with a white-collar man who can claim to be queer but equally a woman working in an agricultural job in a village.”
The CJI said all those who live in cities can’t be termed as elite.
- OCTOBER 17, 2023 10:57This court cannot make law, it can only interpret it, says the CJI
- OCTOBER 17, 2023 10:56There are four judgements: CJI
CJI Chandrachud said there are four judgments in total. “There is the judgment by me, by Justice Kaul, Justice Bhat, and Justice Narasimha. There is a degree of agreement and a degree of disagreement on how far we have to go,” the CJI said.
The sole woman judge on the Bench, J. Hima Kohli, has not given a separate opinion.
- OCTOBER 17, 2023 10:54Bench assembles for the verdict
The apex court had reserved the bunch of pleas for judgment on May 11 after hearing nearly 40 lawyers who argued for and against its interference in the issue
In recent years, there have been several key events in India that have shaped the country’s approach to LGBTQ+ rights, from the criminalization of homosexuality to the decriminalization and eventual legal recognition of LGBTQ+ individuals
Historical events in Indian courts regarding same-sex marriage in India
- In 1860, India’s British colonial leaders introduced a penal code that criminalized same-sex intercourse and limited marriage rights to heterosexual couples.
- 2001: Naz Foundation (India) Trust, a non-governmental organization, filed a lawsuit in the Delhi High Court in 2001, seeking the legalization of homosexual intercourse between consenting adults.
- 2003: The Delhi High Court refused to consider the petition, saying that the petitioners had no locus stand in the matter.
- 2009: The Delhi High Court decriminalized same-sex intercourse between consenting adults, in a landmark ruling.
- 2013: The Supreme Court of India overturned the Delhi High Court’s ruling, upholding the constitutionality of Section 377 of the Indian Penal Code, which criminalized same-sex intercourse.
- 2014: The Supreme Court agreed to hear the Naz Foundation’s petition again, in a review of its 2013 ruling.
- 2018: The Supreme Court of India struck down Section 377 of the Indian Penal Code, decriminalizing same-sex intercourse between consenting adults.
- 2022: A bench of the Supreme Court of India reserved its judgment on a batch of petitions seeking the legalization of same-sex marriage in India.
- In April 2023, a five-judge Constitution bench began hearing the batch of pleas seeking legal recognition of same-sex marriages in India.
- In May 2023, the Supreme Court reserved the bunch of pleas for judgment after hearing nearly 40 lawyers who argued for and against its interference in the issue.
- On October 17, 2023, the Supreme Court of India is set to deliver its verdict on pleas seeking legal validation for same-sex marriage.
Same-sex marriage is not currently recognized in India, and the lack of legal recognition denies LGBTQ+ couples legal and social benefits, such as inheritance rights, joint property ownership, and adoption rights.
The Supreme Court’s judgment on same-sex marriage will be a landmark ruling in India. It is a case that has the potential to change the lives of millions of people.