Same-Sex Marriage: Although the Supreme Court did not legalize marriage equality, it stressed that an individual’s right to enter into a union cannot be restricted based on their sexual orientation. There were four judgments issued by the five-judge bench, most of which divided on the question of adoption rights for queer couples.
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A committee should be formed to address the practical concerns of same-sex couples, including getting ration cards, pensions, gratuities, and successions.
On May 3, the centre told the court it would form a committee headed by a cabinet secretary to address issues faced by same-sex couples without addressing marriage equality.
No Recognition To Same-Sex Marriage From Supreme Court
On the issue of adoption rights, the bench ruled 3-2. Chief Justice DY Chandrachud and Justice SK Kaul recognized queer couples’ right to adopt, while Justice S Ravindra Bhat, Justice PS Narasimha, and Justice Hima Kohli disagreed.
As to how far we should go, there is a degree of agreement and a degree of disagreement, Justice Chandrachud said.
According to the Chief Justice, choosing a life partner is integral to deciding what to do with one’s life. According to him, the right to life and liberty under Article 21 begins with this right. For some people, this may be the most important decision they ever make.
The right to enter into union includes the right to choose one’s partner and the right to receive recognition of that union. “By not recognising such associations, queer couples will face discrimination,” the Chief Justice said, adding that “the right to enter into union cannot be restricted based on sexual orientation”.
The Chief Justice disagreed with the centre’s argument that marriage equality is an urban, elite concept, saying “Queerness is not an urban concept. Homosexuality or queerness are not urban concepts or limited to the upper classes.”
According to him, there is nothing to prove that only heterosexual couples can provide stability to a child. According to him, the Central Adoption Resource Authority “exceeded its authority” in barring adoption by same-sex couples because there is no evidence in the record that only a married heterosexual couple could provide stability to a child.
According to Justice Kaul, a law against discrimination is necessary.
The same-sex relationship has been known since antiquity for both sexual activities and emotional fulfillment. I have referred to some Sufi traditions. I agree with the Chief Justice’s judgment. As a constitutional court, upholding the rights is not a res integra responsibility, and the court has been guided by constitutional morality rather than social morality. The unions must be recognized as unions of love and partnership, he added.
The Chief Justice’s directions did not sit well with Justice Bhat, who agrees that queerness is not urban nor elitist.
According to the Chief Justice, there is a unified thread of rights and that lack of recognition violates rights. However, Article 19(1)(a) does not require that the government enact a law to facilitate that expression,” he added.
According to Justice Bhat, the court can’t create a legal framework for queer couples because there are several factors to consider.
According to Justice Bhat, queer couples should be able to adopt regardless of their sexual orientation. The following concerns are raised by us. In spite of the fact that unmarried and non-heterosexual couples can be excellent parents, the State as parens patriae must explore all avenues and ensure that all benefits are delivered to children in need of stable homes under section 57.”
Justice Bhat’s approach was criticized earlier by the Chief Justice. Despite acknowledging the discrimination against queer couples, my learned brother does not offer directions. I cannot accept this approach.”
According to the judges, tweaking the Special Marriage Act would breach the legislature’s authority.
Due to institutional limitations, the court cannot strike down the Special Marriage Act or amend allied laws like the Succession Act, as doing so would constitute legislation.
He was also in agreement with the judge. The Special Marriage Act violates Article 14, but there are interpretative limitations to including homosexual unions in it. As Solicitor General aptly pointed out, tweaking the Special Marriage Act can have cascading effects.
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