LI Network
Published on: October 18, 2023 at 10:30 IST
In a significant observation, the Supreme Court has clarified that State legislatures have the freedom to enact laws recognizing and regulating same-sex marriage when there is no central law governing such relationships.
While the Supreme Court did not formally recognize the right of same-sex couples to marry, both the majority and minority opinions agreed that State legislatures possess the authority to act in the absence of central legislation. This decision stems from the constitutional provisions that grant powers to both State and central legislatures to make laws related to marriage.
Justices S Ravindra Bhat and Hima Kohli, in the majority judgment, underscored that State legislatures have the option to recognize marriages of queer individuals through various policy measures.They can opt for gender-neutral marriage and family laws, create gender-neutral statutes akin to the Special Marriage Act (SMA) to facilitate marriages within the queer community, establish civil union laws, domestic partnership legislation, or explore other alternatives.
This acknowledgment indicates that State governments may take action and enact laws or frameworks related to same-sex marriage in the absence of central legislation.
In the minority judgment, Chief Justice of India (CJI) DY Chandrachud emphasized the constitutional authority of both Parliament and State legislatures to enact laws recognizing and regulating queer marriages.
He noted that State legislatures have previously amended central laws related to marriage with the consent of the President, as the subject of marriage falls within the concurrent list of the Seventh Schedule of the Constitution.