Points of agreement, divergence between the 5 top court justices

The Constitution bench judgment in same-sex marriage case presents an intriguing mix of views the five judges on the bench expressed, employing tools of interpretation and juristic outlook before rendering their final verdict on a spectrum of questions posed before them.

- Utkarsh Anand

The judges were unison on some of the key aspects of the matter but sharply differed at some other decisive aspects, leading to a 3-2 majority that ruled against granting constitutional protection to civil unions and adoption rights for queer couples.

POINTS OF AGREEMENT

Queerness is not an urban, elitist concept

All the judges on the bench were unanimous that queerness cannot be branded an elitist concept predominantly present in urban areas -an argument raised by the Union government to challenge the petitions. "Homosexuality or queerness is not solely an urban concept, nor is it restricted to the upper classes or privileged communities. People may be queer regardless of whether they are from villages, small towns, or semi-urban and urban spaces. Similarly, they may be queer regardless of their caste and economic location. It is not just the English-speaking man with a white collar job who lives in a metropolitan city and is otherwise affluent who can lay claim to being queer but also (and equally) the woman who works in a farm in an agricultural community," said CJI Dhananjaya Y Chandrachud in his judgment.

Agreeing, justice Sanjay Kishan Kaul said that non-heterosexual unions were well-known to ancient Indian civilisation as attested by various texts, practices, and depictions of art. The judge cited illustrations from the Rig Veda, Somdatta's Kathasaritsagara and Sufi tradition to note that these markers of discourse reflect that such unions are an inevitable presence across human experience. "It would thus be misconceived to claim that non-heterosexual unions are only a facet of the modern social milieu," said justice Kaul. Writing for himself and justice Hima Kohli, justice S Ravindra Bhat also said that queerness is a natural phenomenon that is neither urban nor elite.

No legal recognition to same-sex marriage within the fold of SMA