The LGBTQIA+ movement has long demanded the right to marry. States across the world have been hesitant to recognize their right to marry and thus, a stop-gap measure of a civil union or domestic partnership was created.

Even in India the Supreme Court in Supriyo v. Union of India, denied the movement’s demand for the right to marry. The court unanimously noted that the right to marriage was not a fundamental right under the Indian Constitution and the same could not be enforced. The court recognized that several concomitant rights like the right to choose a partner, fell within the ambit of the fundamental right to privacy but marriage itself was not a fundamental right.

The Centre while opposing the petition submitted that the state recognized marriage as a union between consenting heterosexual couples for the benefit of procreation. Thus, marriage for same-sex relationships did not serve state interest.

The court concluded that it was up to the state to enact a law to recognize same-sex marriages and the court was not fit to do the same due to separation of powers.

Differing views of entitlement

While the Court was unanimous about marriage not being a fundamental right, it differed regarding civil unions. The Chief Justice of India DY Chandrachud and Justice Sanjay Kishan Kaul (since retired) in their dissenting opinion noted that the LGBTQIA+ community had a right to enter civil unions and it was the obligation of the state to safeguard what the CJI called a "bouquet of entitlements" which flowed from the union. The judges traced the origin of this right from Article 19 (Right to form associations and freedom of expression) and 21 of the Constitution. The Chief Justice also recognized the right of the parties to a civil union to adopt a child on similar grounds as an unmarried heterosexual couple. The CJI noting that the Union had suggested the formation of a Committee chaired by the Cabinet Secretary to set out the rights of the couples in unions, directed that the same be formed to crystalize the rights.

On the contrary, Justice S.R Bhat (since retired) speaking for the majority noted that, "An entitlement to legal recognition of the right to union – akin to marriage or civil union, or conferring legal status upon the parties to the relationship can be only through enacted law."

The Court, however, unanimously agreed that LGBTQIA+ positive people were safeguarded to enter relationships of their choice and should not be discriminated for the same. The Union of India also stated that people were free to represent themselves as married or hold ceremonies, it was just that the same were not recognized by the State.

What's the difference?

While civil unions accord the same rights as marriage, they are considered inferior to the institution of marriage. Members of the LGBTQIA+ community have often deemed that civil unions accord a subordinate position when compared to marriage. The United States jurisprudence on the issue also sees marriage as a conventional institution emanating from history and culture while civil unions are a recent occurrence. Civil unions are also criticized for espousing the principle of ‘Separate but equal’.

Marriage in India is primarily a religious affair and brings with it religious sanction. It is precisely due to the prescriptions of religion which prevented inter-faith marriages etc that the State enacted the Special Marriages Act, which views marriage as a civil contract between the two parties. However, the Supreme Court refused to expand the scope of the Special Marriages Act in Surpriyo noting that the same was within the domain of the legislature. The State recently had a very good opportunity to introduce same-sex unions through the uniform civil code legislation introduced in Uttarakhand but failed to do so.

Any law recognizing civil unions needs to factor in all the concomitant rights and mere recognition without entitlements will be immaterial. At its core, the demand of the LGBTQIA+ movement for the right to marry emanates from their demand to be acknowledged, accepted, and given the chance to lead a life of dignity not only by the law but the society as well.

Parijata Bharadwaj, a lawyer and researcher based in New Delhi, co-founded the Jagdalpur Legal Aid Group that offered legal services to adivasis in Chhattisgarh. The views expressed are personal.