No Fundamental Right to Marry; Legal Recognition of Queer Unions Left to Legislature by 3:2 Majority

Writ petitions and transferred cases asked the Court to let LGBTQ+ persons solemnise and register marriages, chiefly by reading Section 4(c) of the Special Marriage Act, its schedules and the Foreign Marriage Act in gender-neutral terms (Bhat J., para 3). Some prayers concerned adoption, while the challenge to the notice and objection procedure was left to a smaller Bench (Bhat J., para 3). The Union maintained that marriage is a heterosexual union (Bhat J., para 1). Navtej Singh Johar had earlier decriminalised consensual same-sex relations (Chandrachud CJI, para 6).

The CJI held that the Constitution does not expressly recognise a fundamental right to marry, and Bhat J. and Narasimha J. found no unqualified right to marriage (Chandrachud CJI, para 340; Bhat J., paras 50, 149; Narasimha J., para 4). Reading words into the SMA would be judicial legislation, so the Act was neither struck down nor read gender-neutrally (Chandrachud CJI, para 340; Bhat J., paras 86-87). Kaul J. found the SMA violative of Article 14 but saw no adequate remedy (Kaul J., paras 16, 18). The CJI held that Part III protects queer couples' freedom to enter a union and that the State must recognise such unions, as Kaul J. agreed (Chandrachud CJI, para 340; Kaul J., para 11). The majority disagreed: Article 21 protects a right to relationship, but legal status for a union can come only through enacted law, which the Court cannot direct (Bhat J., paras 52, 149; Narasimha J., paras 4, 17). Reading Section 57(2) of the JJ Act as confining joint adoption to married couples, the majority declined to void Regulation 5(3) (Bhat J., paras 122, 149; Narasimha J., para 4), which the CJI would have read down (Chandrachud CJI, para 340).