New Delhi: Today, the Supreme Court of India is set to announce its verdict on the legal recognition of same-sex marriages. Chief Justice DY Chandrachud, leading a Constitution Bench with Justices Kaul, Bhat, Kohli, and Narasimha, had reserved the verdict in May after hearing 20 petitions.
This decision carries significant implications for India’s stance on LGBTQ+ rights. Stay tuned for live updates on this historic ruling.
The Supreme Court declines to acknowledge same-sex marriage, asserting that this matter falls within the purview of the legislature.
The Supreme Court notes the Union’s commitment to forming a Committee aimed at exploring the rights and advantages that can be extended to queer couples.
Important to note:
The Supreme Court has ruled that transgender individuals in heterosexual relationships possess the legal entitlement to marry under current laws and personal regulations.
Chief Justice DY Chandrachud and Justice SK Kaul have determined that same-sex couples have the legal right to adopt.
In contrast, Justices S Ravindra Bhat, Hima Kohli, and PS Narasimha expressed dissent, upholding the CARA regulations that specifically exclude same-sex and unmarried couples.
Justice Bhat’s conclusions :
There is no unqualified right to marriage.
Conferring legal status to civil union can only be through enacted law.
But these findings will not preclude the right of queer persons to enter into relationships.
Justice Bhat : If Section 4 is to be read in a gender-neutral manner, the interplay of other provisions will lead to anomalous results, rendering the Special Marriage Act unworkable.
Justice Bhat : 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.
Justice Bhat : While we agree that there is a right to relationship, we squarely recognize that it falls within Article 21. It includes the right to choose a partner and intimacy. They are like all citizens entitled to enjoy their right without hindrance.
Justice Bhat : This Court has recognized that marriage is a social institution. Marriage as an institution precedes State. This implies that marriage structure exists regardless of the State. Terms of marriage are independent of the State, and its sources are external.
Justice Ravindra Bhat : The Court’s intervention in the decisions cited by petitioners were instances of the Court protecting them from violence, based on State’s duty to protect citizen’s right…other instances like Navtej Johar were about provisions which criminalised acts..
Justice S Ravindra Bhat now reads out his judgment.
Justice Kaul: This moment is an opportunity to remedy the historical injustice and discrimination and thus governance needed to grant rights to such unions or marriages.
CJI : The committee shall consider the following – include queer couples as family in ration cards, enabling queer couples to nominate for joint bank account, rights flowing from pension, gratuity etc..
CJI : The Union Govt, State Govts and UTs shall not discriminate against the right of the queer community to enter into union.
CJI : Unmarried couples, including queer couples, can jointly adopt a child.
CJI’s conclusions :
A. This Court has the power to hear the case.
B. Queer is a natural phenomenon known to India from ages. It is neither urban or elitist.
C. Marriage is not static. (VIA LIVE LAW)
CJI DY Chandrachud : 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.
CJI : Gender of a person is not the same as their sexuality.
CJI DY Chandrachud : Contrary to Justice Bhat’s judgment, directions in my judgment does not result in the creation of an institution, rather they give effect to the fundamental rights under Part 3 of the Constitution.
CJI DY Chandrachud : 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.
CJI DY Chandrachud : There is no material on record to prove that only a married heterosexual couple can provide stability to a child.
CJI : Differentia between married couples and unmarried couples has no reasonable nexus with the objective of CARA – the best interests of the child.
CJI : JJ Act does not preclude unmarried couples from adopting. The Union of India has not proved that precluding unmarried couples from adopting is in the best interest of the child. So CARA has exceeded its authority in barring unmarried couples.
CJI coming to the aspect of adoption rights now.
CJI : This court has recognized 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.
CJI : A transgender person is in a heterosexual relationship, such a marriage is recognized by the law. Since a transgender person can be in a heterosexual relationship, a union between a transman and a transwoman or vice versa can be registered under SMA.
CJI : Gender of a person is not the same as their sexuality.
CJI : 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. (Via Live Law)..
Chief Justice of India Challenges Stereotypes: ‘Queerness is Not Urban or Elite'”
Chief Justice of India DY Chandrachud challenged stereotypes by asserting that queerness transcends urban and elite boundaries. His remarks come in response to the central government’s argument during the hearings, which suggested that legalizing same-sex marriage is an “urban elite” concern.
CJI Chandrachud’s statement underscores the diverse and inclusive nature of the LGBTQ+ rights movement in India.
The 5-judge Constitution Bench, headed by Chief Justice DY Chandrachud and including Justices Kaul, Bhat, Kohli, and Narasimha, has convened.
Bench to assemble shortly:
A five-judge Supreme Court Constitution Bench will convene shortly to announce the verdict on same-sex marriage legality in India.
Waiting from so many years: LGBTQ rights activist Arundhati Katju