A
five-judge Constitution bench of the Supreme Court on Tuesday refused to grant
legal recognition to same-sex marriages.
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.
At
the outset, Justice Chandrachud said there are four judgments -- by himself,
Justices Sanjay Kishan Kaul, S Ravindra Bhat and P S Narasimha -- in the
matter. Justice Hima Kohli is also a part of the five-judge bench.
Directing
the Centre, states and Union Territories (UTs) to ensure the queer community is
not discriminated against, the CJI, who is heading the constitution bench, said
queer is a natural phenomenon known for ages and is neither urban nor elitist.
Justice
Kaul said he agrees with the CJI on grant of certain rights to queer couples.
"Non-heterosexual
and heterosexual unions must be seen as both sides of same coin," he said,
adding that legal recognition of non-heterosexual unions is step towards
marriage equality.
Justice
Bhat, who read out the operative portion of his verdict, said he agrees and
differs with views of the CJI on certain points.
Delivering
his verdict on the critical issue, the CJI said it is for Parliament to decide
whether there is need for a change in the regime of the Special Marriage Act.
"This
court can't make law. It can only interpret it and give effect to it," he
said.
Justice
Chandrachud said the court has recorded Solicitor General Tushar Mehta's
statement that the Centre will form a committee to decide the rights and
entitlements of persons in queer unions.
While
reading out the operative portion of his verdict, he directed the Centre,
states and UTs to take steps to sensitise public about queer rights and ensure
that inter-sex children are not allowed sex-change operations at an age they
cannot fully comprehend consequence.
The
CJI directed the police to conduct preliminary enquiry before registering an
FIR against queer couple over their relationship.
He
said homosexuality or queerness is not an urban concept or restricted to the
upper class.
To
imagine queer as existing only in urban spaces would be like erasing them and
queerness can be regardless of one's caste or class, Justice Chandrachud said.
He
said it would be incorrect to state that marriage is a "static and
unchanging institution".
Justice
Chandrachud said the ability to choose a life partner goes to the roots of the
right to life and liberty under Article 21 of the Constitution.
The
right to enter into a union includes the right to choose a partner and its
recognition, the CJI said, adding that failure to recognise such an association
would be discriminatory.
"All
persons, including those queer, have right to judge moral quality of their
lives," he said.
The
CJI said this court has recognised that equality demands that queer persons are
not discriminated against.
He
said the law cannot assume that only heterosexual couples can be good parents
as it would amount to discrimination against queer couples.
On
May 11, the bench reserved its verdict on the pleas after a marathon hearing of
10 days.
During
the arguments, the Centre had told the apex court that any constitutional
declaration made by it on the petitions seeking legal validation for same-sex
marriage may not be a "correct course of action" as the court will
not be able to foresee, envisage, comprehend and deal with its fallout.
The
apex court had commenced hearing arguments in the matter on April 18.
The
bench had made it clear during the arguments that it will not go into personal
laws governing marriages while deciding the pleas seeking judicial validation
for same-sex marriages and said the very notion of a man and a woman, as
referred to in the Special Marriage Act, is not "an absolute based on
genitals".
Some of the petitioners had urged the apex court to
use its plenary power, "prestige and moral authority" to push the
society to acknowledge such a union which would ensure LGBTQIA++ lead a
"dignified" life like heterosexuals.