17 Oct 2023

Supreme Court's decision - Queer people can do everything, but not marriage

New Delhi: A five-judge Constitution bench of the Supreme Court on Tuesday declined to grant legal recognition to same-sex marriages. 

Chief Justice of India D Y Chandrachud, who presided over the bench delivering its verdict on 21 pleas seeking legal validation for same-sex marriages, said the court can't make law but only interpret it and it is for Parliament to change the Special Marriage Act.  He stressed that any changes to the Special Marriage Act would be the responsibility of the Parliament.

CJI Justice Chandrachud said that this court has held that homosexual persons cannot be discriminated against. Their relationships cannot be discriminated on the basis of sexual orientation. Depriving them of the facilities available to heterosexual couples would be a violation of their fundamental rights.

Justice Chandrachud noted that there were four different judgments on this matter, authored by himself, Justices Sanjay Kishan Kaul, S Ravindra Bhat, and P S Narasimha, with Justice Hima Kohli also part of the five-judge bench.

The Chief Justice directed the central government, states, and Union Territories to ensure that the queer community does not face discrimination. He emphasized that being queer is a natural phenomenon with a long history and is not limited to urban or elitist contexts.

Justice Kaul expressed agreement with the Chief Justice regarding granting certain rights to queer couples, emphasizing that non-heterosexual and heterosexual unions should be viewed as two sides of the same coin. He saw legal recognition of non-heterosexual unions as a step toward achieving marriage equality.

Justice Bhat, while reading the operative portion of his verdict, agreed with some aspects of the Chief Justice's views but also differed on certain points. The Chief Justice reiterated that the decision to change the Special Marriage Act's regime rests with Parliament, as the court's role is not to create new laws but to interpret existing ones. He pointed out that the Solicitor General, Tushar Mehta, had informed the court that the central government would establish a committee to determine the rights and entitlements of individuals in queer unions.

In his verdict, Justice Chandrachud directed the central government, states, and Union Territories to undertake initiatives to raise awareness about queer rights and ensure that intersex children are not subjected to sex-change operations at an age when they cannot fully comprehend the consequences.

The Chief Justice also directed the police to conduct a preliminary inquiry before registering an FIR against a queer couple in cases related to their relationship.

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