‘No discrimination against queer couples’: Supreme Court’s to-do list for Centre

Mangalore Today News Network

New Delhi, Oct 17, 2023: The Chief Justice of India, DY Chandrachud, while reading out the same-sex marriage verdict, on Tuesday, said that the right to enter into a union includes the right to choose one’s partner and the right to recognition of that union. A failure to recognise such associations will result in discrimination against queer couples, said the CJI.

 

The Supreme Court, on Tuesday, refused to grant legal recognition to same-sex marriages, saying there is no fundamental right to marry guaranteed by the Constitution.

CJI DY Chandrachud said that there is a need for an anti-discrimination law. He said the law should address intersectional discrimination.

’No discrimination against queer couples’

The Supreme Court asked the Centre to ensure there is no discrimination against queer couples.

The Supreme Court directed the states and union territories to ensure that the queer community is not discriminated against. It said there should be no discrimination in the supply of goods and services and that the public should be sensitised. To prevent harassment of any kind, it also sought safe houses in all areas.

The Supreme Court also asked states to ensure that sex change operations are not allowed when people are not of age to comprehend the effect of such procedures and that no person underwent hormonal therapy as a precondition to be able to be recognised as a queer person.

The top court also directed the police to ensure that no queer person is harassed to ascertain gender identity, and no force by police to go back to their natal families. Due protection should be granted after verification once a police complaint is filed by a queer couple.

‘Material benefits denied to queer couples violation of right’

“For the full enjoyment of such relationships, such unions need recognition and there cannot be denial of basic goods and services. The state may be indirectly infringing upon freedom if it does not recognize the same,” said the CJI.

The Union will set up a High Powered Committee to examine the rights and benefits of queer couples.

Justice Ravindra Bhat, reading out his verdict on same-sex marriage, said the recognition for Civil unions cannot exist in the absence of a legislation. He said the issue of legalising same-sex marriages is not a case where the Supreme Court can require the State to create a legal status.

While reading out the verdict, the CJI said, "There is a degree of agreement and disagreement on how far we have to go".

The Chief Justice said there are four judgments in all -- one by him, and the others by Justices Sanjay Kishan Kaul, S Ravindra Bhat and PS Narasimha. "There’s a degree of agreement and there’s a degree of disagreement," he added.

‘Queerness is not urban or elite’

CJI DY Chandrachud said queerness is not urban or elite. “Homosexuality or queerness is not an urban concept or restricted to the upper classes of society,” said Chandrachud.

The central government had argued during the hearings that the idea of legalising same-sex marriage is an "urban elite" issue.

The CJI, reading out the same-sex verdict, said that the right to choose life partner in essential to right to life. “All persons including LGBT community have right to choose partner. Be who they want to be and gender of a person is not the same as sexuality,” said the CJI.

“Transgender person in a heterosexual relationship would be recognised by the law -- a union between a transman and transwoman can be recognised under current law,” the CJI added.

’Supreme Court cannot make law, it can only interpret’

Chief Justice of India D Y Chandrachud, who was heading the bench pronouncing 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.

CJI DY Chandrachud, while reading out the same-sex verdict, said it would be incorrect to state that marriage is a static and unchanging institution. Reforms in marriage have been brought about by Acts of the legislature, he added.

Reading out the order on same-sex marriage, CJI DY Chandrachud said, "Whether a change in the regime of the Special Marriage Act (SMA) is for the Parliament to decide."

He said if the Special Marriage Act is struck down, it would take the country to pre-Indpendence era but if the Supreme Court reads words into the SMA, it would be taking up the role of the legislature.

"The Court is not equipped to undertake such an exercise of reading meaning into the statute," he added.

‘Law can’t assume only heterosexual couples can be good parents’

"Law cannot assume that only heterosexual couples can be good parents," Chief Justice of India, DY Chandrachud, observed on Tuesday while pronouncing the verdict on pleas seeking regularisation of same-sex marriage.

The CJI noted, the current "adoption regulations are violative of the constitution for discrimination against queer couples".

Justice Chandrachud also stated "unmarried couples, including queer couples, can jointly adopt a child".

The Supreme Court read out its verdict on Tuesday on whether same-sex marriages should be legally recognised in India five years after the top court struck down Section 377 of the Indian Penal Code.

A five-judge bench had reserved its order on May 11 on a batch of 20 petitions filed by same-sex couples, transgender individuals, and LGBTQ+ activists. The hearing started on April 18.

Courtesy: India Today