The Supreme Court has decided not to recognize same-sex marriages, but has directed the Union Government to form a committee to examine the rights and entitlements of people in queer relationships.

• On 17th October 2023, the Supreme Court of India refused to legalize same-sex marriage in the country. However, all the judges on the bench agreed to direct the Union of India to form a committee to examine the rights and entitlements of people in queer unions, even though their relationship will not be legally recognized as a “marriage”.
• The Supreme Court bench was led by Chief Justice of India DY Chandrachud and comprised Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha. They had started hearing the petitions on April 18, 2023, and reserved their judgement on May 11, 2023. Today, the Supreme Court Constitution bench pronounced four judgments, written by CJI DY Chandrachud, Justice SK Kaul, Justice Ravindra Bhat, and Justice PS Narasimha respectively.
• A panel of five judges from the Supreme Court of India, led by the Chief Justice, voted 3-2 against legalizing same-sex marriage.

Background of Same-Sex Marriages

• In the case of Supriyo v. Union of India and connected matters held that queer couples have the right to live together without any threat of violence, coercion, or interference. But decided not to recognize same-sex marriage as legal.
• A group of LGBTQIA+ activists filed twenty petitions challenging the Special Marriage Act 1954 and the Foreign Marriage Act 1969, which do not recognize same-sex marriages. The petitioners argued that these laws discriminate against the LGBTQIA+ community. The court decided that it would only consider the challenge to the Special Marriage Act and would not consider the challenge to the Hindu Marriage Act.

Past Judgments Related to LGBTQIA+

1. Navtej Singh Johar Vs Union Of India

In this case the SC struck down the 158 years old law on homosexuality that made carnal intercourse against order of nature a criminal offence. The Court overruled its previous judgement given in Suresh Kaushal case and declared Sec 377 as unconstitutional as it violated Art 14,15,19 and 21 of the Constitution.

Background of The Case:

• Section 377 of the Indian Penal Code (IPC) criminalized consensual sexual intercourse between same-sex partners. It was considered as an “unnatural offence” and was punishable by up to 10 years in prison.
• The section 377 of the Indian Penal Code (IPC), was challenged in the Supreme Court of India in the case of Suresh Kaushal and Anr Vs. NAZ Foundation and Ors. The petitioners argued that section 377 violated Articles 14, 15, and 21 of the Indian Constitution, which guarantee the right to equality, the right to non-discrimination, and the right to life and personal liberty.
• The Supreme Court passed a judgement in 2013, which was considered to be vague. The court held that the decision of decriminalising homosexuality should have been made by the Parliament of India instead of the courts. The court also held that the courts could only decriminalise homosexuality if it was proved beyond reasonable doubt that the law infringed upon the constitutional provisions.
• The same judgement was challenged in Navtej Singh case through a petition made by five individuals from the LGBTQ community for scrapping Section 377 IPC insofar as it criminalised consensual sex between homosexuals.

2. Nalsa Vs Union Of India 

• The judgement was delivered by a two-judge bench composed of Justice K.S. Radhakrishnan and Justice A.K. Sikri on 15th April 2014 although Justice Sikri gave a different opinion with some additional comments.
• The Supreme Court of India has ruled that transgender people are entitled to all the same rights as everyone else under the Constitution. This includes the right to equality, the right to equal protection of the law, the right to freedom of expression, and the right to live a life of dignity.

• In other words, transgender people cannot be discriminated against because of their gender identity. They have equal rights in employment, healthcare, education, and civil rights.
• The court also held that discrimination on the grounds of sexual orientation and gender identity violates Article 14 of the Constitution, which guarantees equality before the law and equal protection of the law.
• This is a landmark victory for transgender people in India. It affirms their fundamental rights and dignity, and it sends a strong message that discrimination against transgender people will not be tolerated.

Background of The Case:

• The case concerns legal gender recognition of transgender people, and whether the lack of legal measures to cater for the needs of persons not identifying clearly as male or female contradicts the Constitution. 
• Pre-existing Indian law only recognised the binary genders of male and female, and lacked any provision with regard to the rights of transgender people, which advocates in India have also defined as “third gender”. 
• The gender of a person has been assigned at birth and would determine his or her rights in relation to marriage, adoption, inheritance, succession, taxation and welfare. 
• Due to the absence of legislation protecting transgender people, the community faced discrimination in various areas of life. 

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