Inequity Entrenched: Assessing Human Rights Erosion in the Wake of Supreme Court's Queer Marriage Rights Verdict

 24-10-2023

Alexandra Posta

East and South Asia Human Rights Researcher

Global Human Rights Defence

In the hallowed halls of India's Supreme Court, recent deliberations have cast a profound shadow on the fabric of human rights, particularly within the realm of marriage equality. It is necessary to unravel the nuanced legal discussions surrounding fundamental rights to marry, spotlighting the LGBTQ+ community's struggle for recognition. With each judgement rendered, the echoes of inequality reverberate, challenging the very essence of human rights principles that form the foundation of a just and inclusive society.

Is there a Fundamental Right to Marry?

The first and fundamental question raises concerns about the existence of a right to marry as a fundamental human right. In a unanimous stance, Chief Justice D. Y. Chandrachud, alongside Justices S. K. Kaul, S. R. Bhat, Hima Kohli, and P. S. Narasimha, concluded that there is no explicit fundamental right to marry. This verdict prompts a critical examination of the legal framework governing the right to marry in India.

Recognition of Marriages Between Queer Persons Under the Special Marriage Act 1954

The judges unanimously held that marriages between queer persons cannot be recognized under the Special Marriage Act 1954. This decision underscores the need for legal reforms to accommodate diverse unions, ensuring equal recognition and protection under the law.

Supreme Court's Authority to Award Legal Recognition to Queer Persons' Right to Marry

The judiciary's limitation in awarding legal recognition to the right of queer persons to marry was collectively asserted by the justices. This calls for a broader societal dialogue on the role of the judiciary in shaping and reforming human rights norms.

Adoption Rights for Unmarried Non-Heterosexual Couples

A divergence in opinion emerged on whether unmarried non-heterosexual couples have the right to adopt. While Chief Justice D. Y. Chandrachud and Justice S. K. Kaul supported this right, Justices S. R. Bhat, Hima Kohli, and P. S. Narasimha dissented. This disagreement underscores the need for a comprehensive legal framework that respects the diversity of family structures.

Transgender Persons in Heterosexual Relationships and Marriage Rights

A consensus among the majority of the judges emerged in affirming the marriage rights of transgender persons in heterosexual relationships within the existing legal framework. However, Justice S. R. Bhat dissented on this point, signalling a need for further exploration of transgender rights within the broader legal context.

Violations of Human Rights and Legal Implications:

The Supreme Court's stance on marriage rights, as elucidated by Chief Justice D. Y. Chandrachud and other esteemed judges, raises concerns about potential violations of fundamental human rights. The denial of a fundamental right to marry, as unanimously asserted by the justices, poses a direct challenge to the principles enshrined in several international human rights instruments.

1. Violation of the Right to Privacy (Article 12, Universal Declaration of Human Rights)

The denial of a fundamental right to marry infringes upon an individual's right to privacy. Article 12 of the Universal Declaration of Human Rights recognizes the right to privacy, emphasizing that no one shall be subjected to arbitrary interference with their privacy. Restricting the right to marry contradicts this principle by subjecting individuals to arbitrary limitations based on their sexual orientation or gender identity.

2. Discrimination Based on Sexual Orientation and Gender Identity (Article 2 and 7, Universal Declaration of Human Rights)

The refusal to recognize marriages between queer persons under the Special Marriage Act 1954 and the denial of legal recognition to the right of queer persons to marry may constitute discrimination based on sexual orientation. Article 2 of the Universal Declaration of Human Rights and Article 7 emphasize the principles of equality and non-discrimination. Any legal framework that discriminates against individuals on the grounds of their sexual orientation or gender identity goes against these fundamental principles.

3. Right to Family Life and Adoption Rights (Article 16, Universal Declaration of Human Rights)

The divergence in opinions on the adoption rights of unmarried non-heterosexual couples highlights potential violations of the right to family life. Article 16 of the Universal Declaration of Human Rights recognizes the right of men and women of full age to marry and found a family. Denying adoption rights to certain couples based on their sexual orientation constitutes a direct infringement on this right.

4. Right to Equality and Non-Discrimination (Article 1, International Covenant on Civil and Political Rights)

The denial of the right to marry and adopt based on sexual orientation infringes upon the right to equality and non-discrimination as outlined in Article 1 of the International Covenant on Civil and Political Rights. All individuals, regardless of their sexual orientation, are entitled to the equal protection of the law.

5. Recognition of Gender Identity and Non-Discrimination (Article 8, Yogyakarta Principles)

The Yogyakarta Principles emphasize the right to the recognition of gender identity and protection against discrimination based on sexual orientation and gender identity. The refusal to recognize transgender persons' right to marry within the existing legal framework may run counter to the principles outlined in Article 8 of the Yogyakarta Principles.

In scrutinizing the recent deliberations of the Supreme Court of India on marriage rights, it becomes apparent that the positions articulated by Chief Justice D. Y. Chandrachud and fellow justices raise pressing questions regarding potential infringements on fundamental human rights. The denial of a fundamental right to marry, the refusal to recognize marriages between queer persons under specific acts, and the limitations imposed on adoption rights based on sexual orientation carry significant implications.

These positions may run afoul of internationally recognized human rights standards. The denial of the right to marry and adopt based on sexual orientation appears to contravene principles of privacy, equality, and non-discrimination enshrined in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Yogyakarta Principles.

As the legal discourse unfolds, it remains paramount to foster a comprehensive understanding of the implications of such decisions on the broader human rights landscape. A nuanced consideration of the international legal framework alongside domestic perspectives is essential to ensure a legal landscape that respects the inherent dignity and rights of all individuals, regardless of their sexual orientation or gender identity. The ongoing legal deliberations provide an opportune moment for reflection and potential reform to align with established human rights principles.

SOURCES

Aljazeera. (24 October 2023). India’s LGBTQ community battles same-sex marriage ‘heartbreak’ from court. Available at <https://www.aljazeera.com/news/2023/10/24/india-lgbtq-supreme-court-same-sex-marriage-rights>. 

Supreme Court Observer. (17 October 2023). India Supreme Court Decision Posta. Available at https://twitter.com/scobserver/status/1714223154200182936?s=20.

The Wire. (17 October 2023). SC Refuses to Legalise Marriage Equality, 2 of 5 Judges Say Queer Couples Must Be Given Legal Rights. Available at https://thewire.in/law/marriage-equality-supreme-court-decision.

Universal Declaration of Human Rights. (1948). United Nations.

International Covenant on Civil and Political Rights. (1966). United Nations.

Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity. (2007).