Guwahati: The Supreme Court of India on Tuesday pronounced the much-anticipated verdict on a batch of petitions by members of the LGBTQIA+ community seeking the right to marriage under the Special Marriage Act, 1954, a plea that has faced stiff opposition from the Union and state governments.
The country’s top court has declined to grant legal recognition to same-sex marriages, saying it is beyond its scope and should be decided by parliament, but said that queerness is neither an urban nor elite concept or characteristic.
The five judges who have delivered the verdict are led by Chief Justice Dhananjaya Yeshwant Chandrachud.
The bench also includes Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and P S Narasimha.
All judges barring Justice Kohli are giving separate judgments.
This court can’t make a law. It can only interpret it and give effect to it, says CJI Chandrachud
Despite agreements and disagreements among the five judges on the main issue — the right to marriage for LGBTQIA+ community, one thing on which they were unanimous was – that queerness is neither an urban nor elite concept or characteristic.
CJI Chandrachud said that police shall ensure that no queer persons are harassed to ascertain gender identity. He said that a transgender person should not be forced to go back to their natal families when a police complaint is filed by a queer couple after verification due protection to be granted.
He also said that Queerness is a natural phenomenon known to India since ancient times, it’s not urban or elite.
“If two transgender persons intend to marry, identify themselves as trans-man and trans-woman, their marriage can be registered under Special Marriage Act. All LGBTQIA+ couples, identifying themselves as man and woman, can also marry,” said the chief justice.
Justice Kaul agrees with the CJI’’s views. He says the state must ensure that queer couples faced no discrimination in accessing basic needs and societal tolerance. He added that giving the right of marriage to queer couples by the court was not possible as it is a legislative exercise.
Justice Bhat, in his judgment, agreed with CJI and Justice Kaul that there is no fundamental right to marry guaranteed by the Constitution, though queer couples have a right to live together unhindered and undisturbed.
Justice Bhat further said, “The Court can’t put the State under any obligation when there is no constitutional right to marry or legal recognition of unions among non-heterosexual couples.”
The Chief Justice of India also said, “Unmarried couples, including queer couples, can jointly adopt a child,” however, said striking down the regulations that regulate Central Adoption Resource Authority (CARA), observing that it is “wrong to assume that only heterosexual couples will be good parents.”
Justice Narasimha said that the right to marriage is a statutory right or flowing from a custom. It would not be constitutionally permissible to recognize a right to civil union mirroring a marriage.
He adds that a review of legislative schemes that exclude same-sex partners from pension, PF, gratuity, insurance etc. needs to be undertaken.