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SC Refuses To Legalize Same-Sex Marriage, Says ‘It’s In Parliament’s Ambit’

The Supreme Court on Tuesday rejected the legalisation of same-sex unions in India and stated that it could not force the State or Parliament to establish new marriage laws, dealing a severe blow to hundreds of LGBT couples who had hoped to get married.

A five-judge Supreme Court constitution bench declared that Parliament can amend the statute to allow same-sex marriages while rendering decisions on 21 petitions seeking legal recognition for these unions.

Nonetheless, the highest court acknowledged queer people’s equal rights and protection, urging public awareness to prevent prejudice against them.

Judges Kohli, Bhat, and Narasimha were on one side of the decision, while Justices Chandrachud and Kaul were on the other. The decision was made on a number of issues, including adoption.

“Whether a change in the Special Marriage Act (SMA) is needed is for the parliament to ascertain and the court must be careful to enter into the legislative domain,” Chief Justice of India (CJI) D Y Chandrachud further said.

While passing four separate verdicts, the apex 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.

“There is no unqualified right to marriage. Conferring legal status to a civil union can only be through enacted law. But these findings will not preclude the right of queer persons to enter into relationships. The challenge to the Special Marriage Act on the grounds of under-classification is not made out,” Justice Bhat said.

“Consistent with the statement made to the Court, the Union will set up a High Powered Committee to examine the rights and benefits of queer couples. Transsexual persons in homosexual relationships have the right to marry. CARA regulations are not void for not allowing queer couples to adopt,” Justice Bhat said, concluding his judgment.

CJI DY Chandrachud said all persons, including queer persons, have the right to judge the moral quality of their lives. “For full enjoyment of such relationships, these unions require recognition and there can’t be a denial of basic goods and services, ” he added.

CJI Chandrachud did, however, add that Section 4 of the Special Marriage Act (SMA) cannot be deemed unconstitutional only because it excludes same-sex couples and that the court cannot order the State or Parliament to establish a new institution of marriage.

While delivering the ruling, Chief Justice DY Chandrachud stated that homosexuality and queerness are “not an elitist concept.” He went on, “It’s not even a concept that is specific to upper class.”

In a 3:2 decision, the Supreme Court likewise denied gay couples the ability to adopt.

The CJI stated that because it would be discriminatory against gay couples, the law cannot presume that only heterosexual couples may make decent parents.

CJI further emphasised that it is erasing queer people to think of them as existing primarily in privileged, urban settings.

In addition, he emphasised how the idea of marriage has changed in society, moving from Sati to intercaste. To say that marriage is a set, unchanging institution would be inaccurate. Legislative Acts have ushered major changes to marriage laws. Laws pertaining to the socioeconomic idea of marriage have been approved by Parliament, he added.

After a lengthy 10-day hearing, a five-judge constitution bench led by the Chief Justice had reserved its decision on the pleas earlier this year on May 11. Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, CJI DY Chandrachud, and PS Narasimha made up the bench.

The Supreme Court’s decision on same-sex marriage will be televised live today during a joint press conference planned by LGBTQI couples, petitioners, and activists.

The Union government had promised to form a committee during the hearing to look into the administrative measures that might be implemented to address some of the issues related to fundamental social benefits for same-sex couples. The Cabinet Secretary is in charge of the committee.

On Wednesday, the Supreme Court noted that the Center’s proposal to establish a committee to address the “human concerns” of same-sex couples is a “very fair suggestion.” It was suggested to the petitioners to meet with the government and list potential topics for the committee to investigate.

The Supreme Court granted certain rights to the transgender community in 2014 and in 2018, scrapped the law that criminalised same-sex relationships, in a huge victory for the LGBTQ community.

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