E-Paper
Same-sex marriage verdict: In 3:2 judgment, SC bench refuses to grant legal recognition; puts onus on Parliament
Same-sex marriage verdict: CJI DY Chandrachud said it was “incorrect to state that marriage is a static and unchanging institution".
The Supreme Court on Tuesday said it cannot legalise same-sex marriages, with Chief Justice of India DY Chandrachud saying making such a law is the domain of Parliament. A five-judge bench headed by the CJI Chandrachud, heard arguments in the case between April and May this year and pronounced its verdict.
Chandrachud said there was a degree of "agreement and disagreement on how far we have to go" on same-sex marriages as he began reading his order.
Chandrachud, while pronouncing the verdict on 21 pleas seeking legal validation for same-sex marriage, it is for Parliament to change the Special Marriage Act and the court can't make law but only interpret it.
Four separate verdicts will be pronounced by the bench. “There are four separate judgments in the matter,” the CJI said and started reading out operative portion of his verdict.
Pronouncing the verdict, he said it was “incorrect to state that marriage is a static and unchanging institution.”
The five-judge constitution bench comprises the CJI and Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and P S Narasimha. Besides the CJI, Justice Kaul, Justice Bhat and Justice Narasimha have penned separate verdicts.
Directing the Centre, states and Union Territories (UTs) to ensure the queer community is not discriminated against, the CJI, who is heading the constitution bench, said queer is a natural phenomenon known for ages and is neither urban nor elitist.
Justice Kaul said he agrees with CJI Chandrachud on granting certain rights to queer couples. "Non-heterosexual and heterosexual unions must be seen as both sides of the same coin," he said, adding that legal recognition of non-heterosexual unions is a step towards marriage equality.
Justice Bhat, who read out the operative portion of his verdict, said he agrees and differs with the views of the CJI on certain points.
Delivering his verdict on the critical issue, the CJI said it is for Parliament to decide whether there is need for a change in the regime of the Special Marriage Act. "This court can't make law. It can only interpret it and give effect to it," he said.
Chandrachud said the court has recorded Solicitor General Tushar Mehta's statement that the Centre will form a committee to decide the rights and entitlements of persons in queer unions.
While reading out the operative portion of his verdict, he directed the Centre, states and UTs to take steps to sensitise the public about queer rights and ensure that inter-sex children are not allowed sex-change operations at an age they cannot fully comprehend consequences.
The CJI directed the police to conduct a preliminary enquiry before registering an FIR against queer couple over their relationship. He said homosexuality or queerness is not an urban concept or restricted to the upper class.
To imagine queer as existing only in urban spaces would be like erasing them and queerness can be regardless of one's caste or class, Chandrachud said. He said it would be incorrect to state that marriage is a "static and unchanging institution".
Chandrachud said the ability to choose a life partner goes to the roots of the right to life and liberty under Article 21 of the Constitution.
The right to enter into a union includes the right to choose a partner and its recognition, the CJI said, adding that failure to recognise such an association would be discriminatory.
"All persons, including those queer, have right to judge moral quality of their lives," he said.
The CJI said this court has recognised that equality demands that queer persons are not discriminated against.
He said the law cannot assume that only heterosexual couples can be good parents as it would amount to discrimination against queer couples.
On May 11, the bench reserved its verdict on the pleas after a marathon hearing of 10 days.
During the arguments, the Centre had told the apex court that any constitutional declaration made by it on the petitions seeking legal validation for same-sex marriage may not be a "correct course of action" as the court will not be able to foresee, envisage, comprehend and deal with its fallout.
The apex court had commenced hearing arguments in the matter on April 18.
The bench had made it clear during the arguments that it will not go into personal laws governing marriages while deciding the pleas seeking judicial validation for same-sex marriages and said 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 apex court to use its plenary power, "prestige and moral authority" to push the society to acknowledge 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 it would constitute 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.
On April 27, the court asked the Centre whether social welfare benefits such as opening joint bank accounts, nominating a life partner in provident fund, gratuity and pension schemes can be extended to same-sex couples without going into the issue of legal sanction to their marriage.
Conclusions of CJI's judgment:
- It's for Parliament and state legislatures to legally recognise queer marriages.
- Can't nix/read down the Special Marriage Act.
- Queer couples have a right to enter into union.
- The state's duty is to ensure such unions and couples get protection and a bouquet of rights.
- Queer and unmarried couples can jointly adopt children.
- The Centre should proceed with its committee, headed by the cabinet secretary, to address the raft of concerns of same-sex couples, including ration cards, pension, gratuity and succession.
Same-sex marriage judgment by 3:2: Takeaways
- No legal recognition to same-sex marriages.
- No constitutional or fundamental right to civil unions.
- Centre's high-powered committee to examine concerns of same-sex couples.
- No right for queer couples to jointly adopt.
