Same-Sex Marriage: What Changed After the Supreme Court’s Verdict

A short note on the legal position of queer unions in India before the Supreme Court’s verdict on same-sex marriage, and what the verdict said on recognition, discrimination, adoption and the role of Parliament.

The recent verdict delivered by the Hon’ble Chief Justice of India (CJI) has marked a significant step in recognising and ensuring the rights of the queer community in India. For clarity, let us first delineate the legal landscape prior to this judgment.

Before the Verdict

1. Queer marriages were not legally recognised under the Indian legal framework.
2. The Special Marriage Act primarily envisaged the union of a man and a woman, based on traditional gender norms.
3. There was no explicit legal protection or recognition for queer unions or relationships.
4. Adoption of children by queer or unmarried couples was a contentious area, with no clear directives supporting such unions.
5. Discrimination against the queer community, both in perception and in law, was more prevalent.

After the Verdict

1. The CJI, leading the Constitution Bench, has emphasised that the queer community has the right to enter into unions and that the failure to recognise such unions would be discriminatory.
2. The Court has directed the Centre, the States and the Union Territories to ensure that the queer community is not discriminated against, and has directed sensitisation measures.
3. While the Bench has clarified that it cannot change the Special Marriage Act or delve into the personal laws governing marriage, it has left it to Parliament and the State legislatures to decide on the legal recognition of queer marriages.
4. The Court has underscored that the very notion of a man and a woman in the context of the Special Marriage Act is not purely based on genitals, thereby hinting at a more inclusive and evolved interpretation.
5. One of the groundbreaking conclusions is the affirmation that queer and unmarried couples can jointly adopt children.
6. Furthermore, the Centre has been directed to proceed with its committee, which will address various concerns of same-sex couples, ensuring they have equal rights in areas such as ration cards, pension, gratuity and succession.

In essence, while the onus for legal recognition of queer marriages lies with the legislative bodies, the judgment has certainly paved the way for greater inclusivity and acceptance of the queer community in our society. The reaffirmation of the right to life, liberty and the pursuit of happiness for all, regardless of sexual orientation, is indeed a milestone in the annals of our legal history.