The Supreme Court on Tuesday refused to grant legal recognition to same-sex marriage under the Special Marriage Act, saying that it is within Parliament’s ambit to change the law.
A five-judge constitution bench headed by Chief Justice D Y Chandrachud said as he began his verdict in the matter that “courts cannot make law but can interpret and give effect to it.”
Here are the key takeaways from the verdict:
1. On same-sex marriage
The apex court, while passing four separate verdicts, 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 Centre has been asked to set up 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.
“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. 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 the legislative domain,” CJI said.
Also read | BSP releases fourth list for MP elections
2. On Transgender rights
The Supreme Court today affirmed that transgender persons in heterosexual relationships have the right to marry as per the existing statutory laws or personal laws. The CJI, in his judgement, said that the gender of a person was not the same as their sexuality. Therefore, since a transgender person could be in a heterosexual relationship, a union between a transman and a transwoman or vice versa could be registered under the Special Marriage Act and other existing laws.
“From Sati to widow remarriage, from child marriage to intercaste and interfaith marriages, marriage has changed. The institution that we know today is perhaps unrecognisable to our sisters from 200 years ago,” CJI said.
3. On adoption rights for queer couples
The five-judge bench delivered a 3:2 judgment on adoption rights for queer couples. The top court upheld one of the adoption regulations prohibiting unmarried and queer couples from adopting children.
While Chief Justice Chandrachud and Justice Kaul, in their two separate and concurring verdicts, held one of the guidelines of the Central Adoption Resource Authority (CARA), prohibiting unmarried and queer couples from adopting, as unconstitutional and illegal.
Regulation 5(3) of CARA says “No child shall be given in adoption to a couple unless they have at least two years of stable marital relationship except in the cases of relative or step-parent adoption”.
“There was no material on record to prove that only a married heterosexual couple can provide stability to a child,” the CJI said while pronouncing the verdict.
“The regulation 5(3) indirectly discriminates against atypical unions. A queer person can adopt only in an individual capacity. This has the effect of reinforcing the discrimination against queer community.
“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 said.
However, three other judges – Justice Bhat, Justice Kohli, and Justice Narasimha — differed with the CJI and upheld the CARA regulations.
4. On civil union,
The bench was critical of the Centre’s stand that the pleas for legal validation of same-sex marriage were reflective of an urban elitist concept.
“People may be queer regardless of whether they are from villages or cities. Not only an English-speaking man can lay claim to being queer,” the CJI.
The CJI noted that “the right to enter into Union includes the right to choose one’s partner and the right to recognition of that union”, adding that “failure to recognize such associations will result in discrimination against queer couples.”
5. On discrimination against the queer community
In his judgment, the CJI passed the directions that the Union government and state governments must ensure there is no discrimination against the queer community.
The CJI said it should be ensured that there is no discrimination in access to goods and services for the queer community. There is a need to sensitize the public about queer rights. The Union and state governments must create a hotline for the queer community to prevent harassment. The government must create safe houses for queer couples. The government also must ensure that inter-sex children are not forced to undergo operations.
The CJI said that it should ensure that no person shall be forced to undergo any hormonal therapy. There shall be no harassment to the queer community by summoning them to the police station solely to enquire about their sexual identity. Police should not force queer persons to return to their natal family. Police should conduct a preliminary inquiry before registering an FIR against a queer couple over their relationship.
Failure of the state to recognise the bouquet of rights flowing from a queer relationship amounts to discrimination, the court said.
For more latest news, click here.