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New Delhi, India
A five-judge bench of India's Supreme Court, headed by Chief Justice of India DY Chandrachud, delivered a verdict against the legalisation of same-sex marriage in the country while stating that legal status to the civil union of LGBTQIA+ couples can be conferred through enacted law.
The bench which comprised of CJI Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha, gave the verdict which was reserved on May 11.
A summary of Supreme Court's nearly two-hour long verdict
On queerness not being 'an urban concept'
"This court cannot make law, it can only interpret it. Homosexuality or queerness is not an urban concept. Homosexuality or queerness is not an urban concept or restricted to the upper classes of society," said CJI Chandrachud.
On the Supreme Court enforcing laws and not making them
"Supreme Court can't make but can enforce laws. Rights in the constitution would be a dead letter if the positive obligations are not enforced on the state. In the case of personal relationships characterized by in equality the more powerful person gains primacy," CJI DY Chandrachud said.
"The doctrine of separation of powers means that each of the three organs of the State perform distinct functions. No branch can function any others' function. The Union of India suggested that this court would violate the doctrine of separation of powers if it determines the list. However, the doctrine of separation of powers does not bar the power of judicial review. The Constitution demands that this court protect the fundamental rights of citizens. The doctrine of separation of powers does not come in the way of this court issuing directions for the protection of fundamental rights," he added.
On Special Marriage Act
"If the Special Marriage Act 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. It is for the Parliament to decide whether a change in the regime of the Special Marriage Act is needed. This Court must be careful to not enter into legislative domain," the CJI said.
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On discrimination on the basis of sexual orientation
"This Court has recognised that queer persons are not discriminated against and their union cannot be discriminated against based on sexual orientation. All persons, including queer persons, have the right to judge the moral quality of their lives. The gender of a person is not the same as their sexuality," CJI Chandrachud stated.
On queer couples having similar rights as heterosexual couples
"Queer couples must also have access to certain rights and benefits like heterosexual couples. The state can indirectly infringe upon freedom if it does not recognise the same. There may be reasonable restrictions on the right. However, the right to intimate association needs to be unrestricted. Tangible benefits of marriage are traceable to contents of the law," the CJI said.
"This court has recognised that queer persons cannot be discriminated upon. Material benefits and services flowing to heterosexual couples and denied to queer couples will be a violation of their fundamental right," he added.
On the constitution of a committee
"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," said CJI Chandrachud.
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On child adoption
"The Central Adoption Resource Authority (CARA) Regulations permit persons to adopt individually and not as a couple. It does not exclude unmarried persons from adopting. The condition is that the couple must be in a stable relationship for two years," the CJI stated, adding that it is "wrong to assume that only heterosexual couples will be good parents."
"A queer person can adopt only in an individual capacity. This has the effect of reinforcing the discrimination against queer community," he further said. However, Justice Bhat expressed his disagreement with CJI on this.
On government protecting the queer community
The Supreme Court directed the Centre to:
- Ensure no discrimination against the queer community.
- Ensure no discrimination in access to goods and services.
- Establish a hotline for the queer community.
- Sensitise people regarding rights of the queer people.
- Establish safe houses for queer people.
- Ensure no inter-sex children are forced to undergo operations.
(With inputs from agencies)
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