The five-judge Supreme Court bench led by CJI D Y Chandrachud, which was hearing the batch of petitions by members of the LGBTQIA+ community seeking right to marriage under Special Marriage Act, 1954, refused to give marriage equality rights to LGBTQIA+ community in the country. This plea by the community had faced stiff opposition from the Union government and also from some states.
Delivering the verdict on pleas seeking legal sanction for same-sex marriage, Chief Justice of India (CJI) D.Y. Chandrachud on Tuesday said that queerness is not an urban or elite concept and the right to choose a life partner lies at the root of Article 21 of the Constitution.
He said that Article 15 of the Constitution prohibiting discrimination on the basis of ‘sex’ must be read to prohibit all forms of discrimination based on ‘sexual orientation'.
CJI Chandrachud said that the doctrine of separation of power does not take away power of judicial review and any directions or orders issued for enforcement of fundamental rights cannot be termed as violation of doctrine of separation of power.
He directed that the committee set up by the Union government will take steps to decide the rights and social entitlements of same-sex couples.
During the hearing, the top court had asked the Centre to find a way to give same-sex couples basic social benefits, like joint bank accounts or nominating a partner in insurance policies, even without legal recognition of their marital status.
(IANS)
ustice Ravindra Bhat said that he 'disagrees with the CJI DY Chandrachud on the right of queer couples to adopt a child'. Justice Bhat also raised certain concerns on the matter.
Justice Ravindra Bhat said: "There cannot be an unqualified right to marry which is to be treated as a fundamental right. While we agree that there is a right to a relationship, we squarely recognise that it falls within Article 21. It includes the right to choose a partner and enjoy physical intimacy with them including the right to privacy, autonomy etc. and should enjoy this right undisturbed from society and when threatened State has to protect the same. There cannot be any doubt that there is a choice to have a life partner."
Justice Ravindra Bhat said that transgenders can marry in the marriage act and queers have the right to marry but the court can't strike down the Special Marriage Act. He also stressed the need for an anti-discrimination act.
Justice Ravindra Bhat said that he does not agree with the directions issued by CJI Chandrachud on the Special Marriage Act stating that the marriage act is not unconstitutional.
CJI Chandrachud said that the CARA circular not giving adoption rights to queer couples is violative of Article 15 of the Constitution. He said material benefits/ services given to heterosexual couples & denied to queer couples will be a violation of their fundamental rights while directing the Union government and the State governments to ensure that queer people are not discriminated against on the basis of their sexual orientation.
The Parliament hasn't framed law on gay marriage and it can only decide on Marriage Act. The SC can not scrap the Special Marriage Act, mentioned the CJI. Whether a change in the regime of the Special Marriage Act is required or not, the Parliament will decide. This Court must be careful to not enter into the legislative domain, said CJI Chandrachud suggesting formation of a committee on the same.
CJI Chandrachud further said that homosexuality or queerness is not an urban concept or restricted to the upper classes of society. "The doctrine of separation of powers cannot stand in the way of the court issuing directions to protect fundamental rights. The court cannot make law but only can interpret and give it effect," said CJI Chandrachud.
While hearing the matter on Tuesday, Chandrachud referred to the abolition of Sati Pratha and Child Marriage and said that the concept of marriage has undergone a sea change. CJI Chandrachud said that 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 said.