On October 17, 2023, the Supreme Court of India declined to provide legal recognition for queer marriages but directed the Union of India to establish a committee to assess the rights and entitlements of individuals in queer unions that do not have legal recognition as “marriage.”


A five-judge bench, led by Chief Justice of India DY Chandrachud and including Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, began hearing the petitions on April 18, 2023. After extensive deliberation, the bench reserved its judgment on May 11, 2023. Today, the Supreme Court Constitution bench delivered four judgments, each authored by CJI DY Chandrachud, Justice SK Kaul, Justice Ravindra Bhat, and Justice PS Narasimha, respectively.


CJI DY Chandrachud’s judgment stated that the court couldn’t alter or amend the provisions of the Special Marriage Act due to “institutional limitations.” However, the CJI noted that the Union Government would create a committee to determine the rights and entitlements of individuals in queer unions. He also affirmed that transgender individuals in heterosexual relationships could marry under existing laws, including personal laws. Furthermore, he asserted that unmarried couples, including queer couples, could jointly adopt a child. In this context, the CJI declared that Regulation 5(3) of the CARA Regulations, which prohibited unmarried couples from adopting, violated Article 15 of the Constitution.


Justice SK Kaul concurred with the CJI’s judgment, highlighting that queer unions should be recognized as a form of partnership and love. However, he acknowledged that the inclusion of queer unions in the Special Marriage Act fell under the purview of the Parliament.


Justice SR Bhat dissented from the CJI’s judgment, emphasizing that legal marriage entitlements must come through enacted law. Nevertheless, he agreed that the Union should establish a High Powered Committee to examine the rights and benefits for queer couples. He argued that the Court couldn’t mandate the creation of a legal status for such unions, differentiating this case from previous instances involving queer rights.


Justice Hima Kohli concurred with Justice Bhat’s perspective.


Justice PS Narasimha, in agreement with Justice Bhat, contended that there was no absolute right to marry, and marriage rights were statutory or customary. He also maintained that recognizing a right to civil union similar to marriage would not be constitutionally permissible. On the matter of the CARA regulations and the right of queer couples to adopt, he concurred with Justice Bhat, asserting that the CARA Regulations were not unconstitutional. He called for a review of legislative schemes excluding queer couples from pension, PF, gratuity, insurance, and other benefits, stating that this should be the legislature’s constitutional responsibilities.

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