Same-sex marriage: CJI says 'can't discriminate against queer community'
Satya Prakash
New Delhi, October 17
The five-judge Supreme Court bench assembled on Monday to pronounce verdict on pleas seeking legal validation for same-sex marriage.
There were four judgments–one each by CJI DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat and Justice PS Narasimha.
The CJI said there were some agreements and some disagreements.
CJI Chandrachud said, “Doctrine of separation of powers can’t stand in the way of this court to issue a writ to protect fundamental rights.”
The CJI said, “Courts cannot make law but can interpret and give effect to it. Then the subject of queerness is not urban or elite. People may be queer regardless whether they are from villages or cities.. not only an English-speaking man can lay claim to being queer. It’s also a woman working at a farm in a rural area.”
“The institution of marriage has changed… it has metamorphosed… and it is an irrefutable truth and many such changes have come from Parliament. Many sections remained opposed to these changes but still it has changed thus it is not a static or unchanging institution.”
The CJI said choosing a life partner is an integral part of life and what defines their own identity. The ability to choose a partner goes to the root of right to life and liberty under Article 21 of the Constitution (Right to life and liberty).
The CJI said he had disagreed with Justice S Ravindra Bhat on certain aspects.
“Contrary to Justice Bhat’s judgment, directions in my judgment do not result in the creation of an institution, rather they give effect to the fundamental rights,” said CJI Chandrachud.
CJI DY Chandrachud reads out his directions; says the Union Government, state governments and Union Territories are directed to ensure that
(1) Queer community is not discriminated against.
(2) There is no discrimination in access to goods and services.
(3) Sensitise the public about queer rights.
(4) Create a hotline for queer community.
(5) Create safe houses for queer couples.
(6) Ensure inter-sex children are not forced to undergo operations.
The CJI further directs: “No person shall be forced to undergo any hormonal therapy. 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. Police should conduct a preliminary enquiry before registering an FIR against a queer couple over their relationship.
CJI says SC cannot strike down Special Marriage Act (SMA) or read words into the SMA due to the institutional limitations. The Court cannot read words into allied laws like the Succession Act as it would amount to legislation.
CJI Chandrachud declares that “Failure of State to recognise the bouquet of rights flowing from a queer relationship amounts to discrimination. Right to enter into union cannot be restricted on the basis of sexual orientation. Transgender persons in heterosexual relationships have the right to marry under the existing laws including personal laws.”
The CJI says that unmarried couples, including queer couples, can jointly adopt a child.
CJI says: “The Union Government, State Governments and Union Territories shall not discriminate against the right of the queer community to enter into a union.”
Recording the statement of Solicitor General Tushar Mehta that the Centre will constitute a committee to decide the rights and entitlements of persons in queer unions.
The CJI directs that 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.
Justice SK Kaul reads out his judgment
Justice Kaul: Same-sex relationships have been recognised from antiquity, not just for sexual activities but as relationships for emotional fulfilment. Refers to certain Sufi traditions.
Justice Kaul agrees with the CJI, says the State must ensure that queer couples face no discrimination in accessing basic needs and societal tolerance. Giving right of marriage to queer couple by court was not possible as it is a legislative exercise, says Justice Kaul.
Justice S Ravindra Bhat disagrees with the CJI on many aspects. He, however, fully agrees with Justice PS Narasimha’s views.
Justice Bhat: This court has recognised that marriage is a social institution. Marriage as an institution precedes the 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 Bhat says a gender neutral interpretation of the Special Marriage Act may not be equitable at times and can result in women being exposed to vulnerabilities in an unintended manner.
If Section 4 of SMA 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, says Justice Bhat.
