Same-Sex Marriage Verdict Highlights: Five years after Article 377 was struck down, the Supreme Court is delivering its much-awaited judgment on pleas seeking legal validation for same-sex marriage on Tuesday. On May 11, a five-judge constitution bench headed by Chief Justice D Y Chandrachud reserved its verdict on the pleas after hearing both the side for 10 days. There are four judgments, one each by CJI DY Chandrachud, Justice Kaul, Justice Bhat and Justice Narasimha.
The CJI listed some directives and left it to the Parliament to decide on the issue. While reading out the judgment, CJI Chandrachud said, “The SC cannot strike down the provisions of the Special Marriage Act (SMA) or read words differently.” Justice Kaul also joined CJI in batting for civil unions for non-heterosexual couples, saying the legal recognition of civil unions for non-heterosexual couples represents a step towards marriage equality.
The Supreme Court in May reserved its verdict after 18 same-sex couples moved petitions, seeking recognition of their relationship with the legal and social status of “marriage”. Additionally, petitioners have sought a declaration by the Supreme Court that “marriage”, under the Special Marriage Act, would include same-sex couples.
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Supreme Court refuses to recognise same-sex marriage, says "it is for the legislature to do".
In the final judgment, Supreme Court records the statement of the Union that it will constitute a Committee to examine the rights and benefits which can be given to queer couples.
Delivering his judgment on marriage equality in the Supreme Court today, Justice S Ravindra Bhat said he disagrees with CJI DY Chandrachud's opinion allowing non-heterosexual couples to adopt.
He also said that the Centre's high-powered committee must take a call on making policy changes.
Concluding his judgment, Justice Bhat, said there is no unqualified right to marriage.
“Conferring a legal status to a civil union can only be through enacted law. But these findings will not preclude the right of queer persons to enter into relationships,” he said.
He further said that the court cannot a legal framework for queer couples, and the Legislature should do it, as there are several aspects to be taken into consideration.
Justice Ravindra Bhat said he agrees that there is a right to a relationship for queer individuals, but it falls within Article 21 (Protection of life and personal liberty). He added that queer people, like all Indian citizens, are entitled to their right to choose a partner and intimacy.
However, while reading out the judgment, Justice Bhat said, "All queer persons have the right to choose their partners. But State cannot be obligated to recognize the bouquet of rights flowing from such a Union. We disagree with the CJI on this aspect."
"A gender-neutral interpretation of the Special Marriage Act may not be equitable at times and can result in women being exposed to vulnerabilities in an unintended manner," Justice Bhat said.
Justice Bhat said, "The judgment of CJI propounded a theory of a unified thread of rights and how lack of recognition violated rights. However, when the law is silent, Article 19(1)(a) does not compel the State to enact a law to facilitate that expression."
"For example, the limited liability partnership was not recognized until a law was enacted recently. Court could not have compelled the State to create a law to recognize such an association," he added.
Delivering his judgment on marriage equality in the Supreme Court today, Justice Sanjay Kishan Kaul said that legal recognition of civil unions for non-heterosexual couples represents a step towards marriage equality. Like CJI D Y Chandrachud, he also batted for civil unions for non-heterosexual couples.
Justice Sanjay Kishan Kaul says, "I have said that the Special Marriage Act is violative of Article 14. However, there are interpretative limitations in including homosexual unions under it. As rightly pointed out by the Solicitor General, tinkering with the Special Marriage Act can have a cascading effect.."
Citing Centre's pledge to form a panel on the issue, the CJI said, "We record the statement of the Solicitor General that the Union Government will constitute a committee to decide the rights and entitlements of persons in queer unions."
"The committee shall consider the following - including queer couples as family in ration cards, enabling queer couples to nominate for a joint bank account, rights flowing from pension, gratuity etc," the CJI noted.
CJI DY Chandrachud said Regulation 5(3) of the Central Adoption Resource Authority, which excludes queer couples from adoption, is violative of Article 15 of the Constitution.
CJI DY Chandrachud says, "There shall be no harassment to queer community by summoning them to police station solely to enquire about their sexual identity. Police should not force queer persons to return to their natal family. No person shall be forced to undergo any hormonal therapy."
Queerness can be regardless of one's caste or class or socio-economic status, the CJI said in his opinion. The CJI further said that all those who live in cities can't be termed as elite.
The CJI said that 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," he observed, adding that 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."
CJI Chandrachud said, "Law cannot assume that only heterosexual couples can be good parents. This would amount to discrimination. So the adoption regulations are violative of the constitution for discrimination against queer couples."
The CJI observed that it would be wrong to assume 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," the CJI said in its opinion.
While reading out the aspect of adoption rights, CJI Chandrachud said, "There is no material on record to prove that only a married heterosexual couple can provide stability to a child."
CJI Chandrachud said a failure to recognize unions would result in discrimination against queer couples. The state can indirectly infringe upon freedom if it does not recognize the same, he added.
The CJI said that if the court holds Section 4 of the Special Marriage Act as unconstitutional because of being under-inclusive, it has to either strike it down or read it down. Also, if the SMA is struck down, it would take the country to pre-Independence era. "If the Court takes the second approach and reads words into the SMA, it will be taking up the role of legislature," the CJI said while reading out his opinion.
"The court is not equipped to undertake such an exercise of reading meaning into the statute. Whether a change in the regime of the Special Marriage Act is for the Parliament to decide. This Court must be careful to not enter into legislative domain."
The Chief Justice of India said that it would be incorrect to state that marriage is a static and unchanging institution. Citing practices such as Sati, child marriage etc., the CJI said that our ancestors would not recognise the institution of marriage if they were come and see it today. "Reforms in marriage have been brought about by Acts of the legislature."
CJI DY Chandrachud says that homosexuality or queerness is not an urban concept or restricted to the upper classes of the society. He was reading out his opinion ahead of the pronouncement of the verdict. "It is not an English speaking man with a white collar man who can claim to be queer but equally a woman working in an agricultural job in a village," the CJI observed.
CJI DY Chandrachud said, "If the Special Marriage Act (SMA) is struck down, it will take the country to the pre-Indpendence era. If the Court takes the second approach and reads words into the SMA, it will be taking up the role of legislature.The Court is not equipped to undertake such an exercise of reading meaning into the statute."
CJI DY Chandrachud said, "Incorrect to state that marriage is a static and unchanging institution. Reforms in marriage have been brought about by Acts of the legislature."
"Queerness can be regardless of one's caste or class or socio-economic status," Chief Justice of India DY Chandrachud said before reading out the verdict on same-sex marriages.
The Chief Justice of India DY Chandrachud is reading out the verdict and said there are four judgments in all. "There's a degree of agreement and there's a degree of disagreement," he added.
Mira Patel, advocate of Bollywood actor Bobby Darling, spoke to news agency PTI ahead of the Supreme Court's verdict on same-sex marriage today.
"The matter has been listed in today's cause list and one of the honourable judges is also retiring. So, we were anyway expecting this verdict to come before 20th (October). The entire LGBT in the country is waiting for this verdict with its fingers crossed," she said.
The CJI Chandrachud-headed bench will deliver its verdict at 10:30 am, according to Live Law. The bench also comprises Justices SK Kaul, SR Bhat, Hima Kohli, and PS Narasimha.
On September 6, 2018, a five-judge bench unanimously struck down Section 377 of the Indian Penal Code (IPC), and thus decriminalised same-sex relationships between consenting adults. One of the judges on that bench was Justice DY Chandrachud, the current Chief Justice of India (CJI).