Homosexuality or queerness is not an urban concept or restricted to the upper classes of the society.
New Delhi: A five-judge Constitution Bench headed by Chief Justice of India D.Y. Chandrachud on Tuesday refused to grant any legal sanction to same-sex marriage. The Constitution Bench, also comprising Justices S.K. Kaul, S.R. Bhat, Hima Kohli, and P.S. Narasimha, held that queer couples do not have an unqualified right to marriage.
It asked the Union government to set up a high-powered committee to be chaired by the Cabinet Secretary to take steps to decide the rights and social entitlements of same-sex couples.
The Supreme Court said that courts cannot make law and can only interpret it. It refused to accept the petitioners’ contention that in the Special Marriage Act (SMA), wherever ‘husband’ and ‘wife’ is used, it can be made gender neutral by using ‘spouse’, and ‘man’ and ‘woman’ should be substituted by ‘person’.
Earlier, the Central govt had opposed same-sex unions during the hearing, saying that ‘the legislative policy of India has consciously validated a union only between a biological man and a biological woman.’ In May, the govt submitted in the court that it would set up a panel headed by the cabinet secretary to examine administrative steps that could be taken to address “genuine concerns” of same-sex couples.
Top quotes on Same Sex Marriage
CJI Chandrachud says it’s incorrect to say marriage is a static and unchanging institution. If the Special Marriage Act is struck down, it will take the country to the pre-Independence era, he adds. Whether a change in the regime of the Special Marriage Act is required is for the Parliament to decide. This Court must be careful to not enter into legislative domain.
Homosexuality or queerness is not an urban concept or restricted to the upper classes of the society.
Our ability to feel love and connection with one another makes us feel human. We have an innate need to be seen and see. The need to share our emotions make us who we are. These relationships may take many forms, natal families, romantic relationships etc.
Withdrawal of the State from the domestic space leaves the vulnerable party unprotected. Thus all intimate activities within private space cannot be said to be beyond State’s scrutiny.
If a transgender person wishes to marry a heterosexual person such marriage will be recognized as one would be man and another would be woman, transgender man has the right to marry a woman, transgender woman has the right to marry a man and transgender woman and transgender man can also marry and if not allowed it will violate transgender act.
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This court has recognized that queer person are not discriminated upon and their union cannot be discriminated against based on sexual orientation and material and services flowing to heterosexual couples and denied to them will be a violation of the fundamental right. the word sex cannot be read without social and historical contexts. restriction to their union based on sexual orientation will be violation of article 15 of the constitution.
All persons, including queer persons, have the right to judge the moral quality of their lives. The meaning of liberty is the ability to be who one wishes to be…Choosing a life partner is an integral part of choosing one’s course of life. Some may regard this as the most important decision of their life. This right goes to the root of the right to life and liberty under Article 21.
CJI directs the Union government and the State governments to ensure that queer people are not discriminated against on the basis of their sexual orientation.
Union Government will constitute a committee to decide the rights and entitlements of persons in queer unions. This Committee to consider to include queer couples as ‘family’ in ration cards, enabling queer couples to nominate for joint bank accounts, rights flowing from pension, gratuity etc. The Committee report to be looked at Union Government level.
JJ Act does not preclude unmarried couples from adopting. The Union of India has not proved that precluding unmarried couples from adopting is in the best interest of the child. So CARA has exceeded its authority in barring unmarried couples. Differentia between married couples and unmarried couples has no reasonable nexus with the objective of CARA – the best interests of the child. It cannot be assumed that unmarried couples are not serious about their relationship. There is no material on record to prove that only a married heterosexual couple can provide stability to a child.
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The Constitution Bench was hearing a batch of petitions that challenged certain provisions of the Hindu Marriage Act, Foreign Marriage Act, Special Marriage Act and other marriage laws as unconstitutional on the ground that they deny same-sex couples the right to marry, or alternatively, to read these provisions broadly so as to include same-sex marriage.
