Supreme Court says 'no' to same-sex marriage, directs Centre to find administrative solutions

The judges have asked the Centre to form a committee to find a solution to the problems faced by same-sex couples in getting ration cards, pension, gratuity and succession issues.

The judgment was delivered by a Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha.

"Queer persons are not prohibited in celebrating their love for each other, but have no right to claim recognition of such union," the verdict said.

The verdict while admitting that queer love flourished since ancient time said marriage rights of non-heterosexual couples should be given only through the parliamentary process and not court since the policy making and law marking are meant for Parliament. 

On May 3, the Centre had said it had a plan to form such a committee to look into the administrative issues.

According to The Hindu, the minority views of Chief Justice D.Y. Chandrachud and Justice Sanjay Kishan Kaul of the five-member bench held that "constitutional authorities should carve out a regulatory framework to recognise the civil union of adults in a same-sex relationship."

The five judge bench gave a 3-2 judgement on the adoption rights, NDTV reported.

Chief Justice of India DY Chandrachud and Justice SK Kaul recognised the queer people's right to adopt while three other judges- S Ravindra Bhat, PS Narasimha and Hima Kohli- disagreed.

The Chief Justice said as quoted by NDTV, "There is no material on record to prove that only a married heterosexual couple can provide stability to a child."

Justice Kaul said, "Same-sex relationships have been recognised from antiquity, not just for sexual activities but as relationships for emotional fulfilment. I have referred to certain Sufi traditions.

"I agree with the judgment of the Chief Justice. It is not res integra for a constitutional court to uphold the rights and the court has been guided by constitutional morality and not social morality. These unions are to be recognised as a union to give partnership and love."

Justice Bhat has said he disagrees with the Chief Justice's order on adoption.

He said, "We voice certain concerns. This is not to say that unmarried or non-heterosexual couples can't be good parents... given the objective of section 57, the State as parens patriae has to explore all areas and to ensure all benefits reach the children at large in need of stable homes."

All the five judges, however, agreed that there is no unqualified right to marriage and same-sex couples cannot claim that as a fundamental right. 

The historic 2018 Supreme Court verdict

In a landmark decision in September 2018, the Supreme Court decriminalized gay sex in India overturning a 2013 judgement of the same court that upheld the British India-era law that considered same sex union as "unnatural offence". 

The top court nullified the validity of Section 377 of the Indian Penal Code which used to hold gay sex as an offence in India and was misused by police to harass the homosexual community.

In 2013, the top court had upheld gay sex as an offence reversing an earlier Delhi High Court verdict to read down Section 377 and decriminalise homosexuality, holding that the law could be changed only by Parliament and not the Court. However, the 2018 verdict of the Supreme Court changed all that.