The News Freedom
New Delhi, October 17
The Supreme Court on Tuesday refused to legalise same-sex marriages, passing the responsibility back to Parliament. However, the Supreme Court recognised equal rights for queer people and their protection, while calling for sensitisation of the general public so they don’t face discrimination.
A five-judge constitution bench comprising Chief Justice of India (CJI) D Y Chandrachud and justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and P S Narasimha gave four separate judgments. While passing separate verdicts, the Supreme Court was unanimous in holding that there is “no unqualified right” to marriage, and same-sex couples can’t claim it as a fundamental right under the Constitution.
The majority opinion was delivered by Justices Bhat, Kohli and Narasimha, with the latter delivering a separate but concurring opinion. While CJI Chandrachud and Justice Kaul delivered separate dissenting judgments.
While majority opinion rendered by Justice Ravindra Bhat said that there is no unqualified right to marriage. Entitlement to civil unions can be only through enacted laws and courts cannot enjoin such creation of a regulatory framework.
Talking about the rights of queer persons, the Supreme Court said that queer persons are not prohibited in celebrating their love for each other, but have no right to claim recognition of such union. Queer persons have the right to choose their own partner and they must be protected to enjoy such rights.
However the Justice Ravindra Bhat said that same-sex couples do not have right to adopt children under existing law. Central government shall set up a high-powered committee to undertake study of all relevant factors associated with same-sex marriage. Transgender persons have the right to marry.
However, the Supreme Court in its minority opinion held that queer couples have a right to enter into civil unions, though they do not have the right to marry under the existing laws. In the minority judgement, CJI Chandrachud’s said that Queerness is not urban or elite. There is no universal concept of marriage. Marriage has attained the status of a legal institution due to regulations. The Constitution does not grant a fundamental right to marry and the institution cannot be elevated to the status of a fundamental right.
He said in the order that Court cannot strike down provisions of the Special Marriage Act. It is for Parliament to decide the legal validity of same-sex marriage. Courts must steer clear of policy matters. Freedom of queer community to enter into unions is guaranteed under the Constitution. Denial of their rights is a denial of fundamental rights. Right to enter into unions cannot be based on sexual orientation. Transgender persons have the right to marry under existing law.
Giving details, the CJI Chandrachud said that queer couples have the right to jointly adopt a child. Regulation 5(3) of the Adoption Regulations as framed by the Central Adoption Resource Authority (CARA) is violative of Article 15 of the Constitution for discriminating against the queer community. Centre, states, union territories shall not bar queer people from entering into unions to avail benefits of the state, he further said.