SC Verdict on Same-Sex Marriage: The court ruled on a series of petitions that sought legal validation for same-sex marriage under the Constitution.
New Delhi: The Supreme Court on Tuesday refused to give marriage equality rights to the LGBTQIA+ community in India. The SC said it is upto parliament to make laws for it. It recorded the statement of the Union that it will constitute a Committee to examine the rights and benefits which can be given to queer couples. The court ruled on a series of petitions that sought legal validation for same-sex marriage under the Constitution. The Centre, states and UTs were instructed by the CJI, who leads the constitution bench, to ensure that the queer community is not subjected to discrimination. He said that queerness is a natural phenomenon that has existed for a long time and is not confined to urban or elite spaces.
Justice Kaul deferred with the CJI on granting certain rights to queer couples. He said that “non-heterosexual and heterosexual unions should be viewed as two sides of the same coin” and that legal recognition of non-heterosexual unions is a step towards marriage equality. Justice Bhat, who announced the main part of his verdict, said that he agreed and disagreed with some of the CJI’s views.
The CJI said that it was up to Parliament to decide whether there was a need for a change in the Special Marriage Act’s regime. He said that “this court cannot make law. It can only interpret and apply it.” Justice Chandrachud said that the court had noted Solicitor General Tushar Mehta’s statement that the Centre would form a committee to determine the rights and entitlements of people in queer unions.
He directed the Centre, states and UTs to take measures to raise awareness about queer rights and ensure that inter-sex children are not subjected to sex-change operations at an age when they cannot fully understand the consequences. The CJI ordered the police to conduct a preliminary investigation before filing an FIR against a queer couple over their relationship.
He said that homosexuality or queerness is not an urban or upper-class concept. Justice Chandrachud said that imagining queer as existing only in urban areas would be like erasing them and that queerness can transcend one’s caste or class. He said that it would be wrong to say that marriage is a “static and immutable institution”.
Justice Chandrachud said that the right to choose a life partner is at the core of the right to life and liberty under Article 21 of the Constitution.
The CJI said that the right to enter into a union includes the right to choose a partner and its recognition, and that failing to recognise such a relationship would be discriminatory. He said that “all people, including those who are queer, have the right to judge the moral quality of their lives.” The CJI said that this court has acknowledged that equality requires that queer people are not discriminated against.
He said that the law cannot presume that only heterosexual couples can be good parents as it would amount to discrimination against queer couples. The bench reserved its verdict on the petitions after a 10-day long hearing on May 11.
During the arguments, the Centre had told the top court that any constitutional declaration by it on the petitions seeking legal validation for same-sex marriage may not be a “correct course of action” as the court would not be able to foresee, envisage, comprehend and deal with its implications. The top court had started hearing arguments in the matter on April 18.
The bench had clarified during the arguments that it would not delve into personal laws governing marriages while deciding the petitions seeking judicial validation for same-sex marriages and said that the very notion of a man and a woman, as referred to in the Special Marriage Act, is not “an absolute based on genitals”.
Some of the petitioners had urged the top court to use its plenary power, “prestige and moral authority” to persuade society to accept such a union which would ensure LGBTQIA++ lead a “dignified” life like heterosexuals.
LGBTQIA++ stands for lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual and ally persons.
On May 3, the Centre had told the court that it would set up a committee headed by the cabinet secretary to examine the administrative steps that could be taken to address “genuine humane concerns” of same-sex couples without going into the issue of legalising their marriage.
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CREDIT: ZEE NEWS
