By Online Desk
The Supreme Court is all set to announce its verdict on a batch of pleas seeking legal recognition of same sex marriages in the country.
A five-judge constitution bench headed by Chief Justice of India (CJI) D Y Chandrachud and comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and P S Narasimha, had a 10-day-long hearing on the matter.
CJI Chandrachud on Tuesday stated, “The right to enter into Union includes the right to choose one’s partner and the right to recognition of that union,” adding that failure to recognise it would be discriminatory. “Failure of State to recognize the bouquet of rights flowing from a queer relationship amounts to discrimination.”
He went on to add that it would also be discriminatory if the law assumed that only heterosexual couples can be good parents.
On the topic of adoption by queer coiples, the CJI said that, “The Juvenile Justice (Care and Protection of Children) Act, 2015, does not preclude unmarried couples from adopting. The Union of India has not proved that precluding unmarried couples from adopting is in the best interest of the child. So, the Central Adoption Resource Authority has exceeded its authority in barring unmarried couples.”
“There is no material on record to prove that only a married heterosexual couple can provide stability to a child,” he said.
#SameSexMarriage | Right to enter into a union cannot be restricted on the basis of sexual orientation: CJI Chandrachud.Express photo | @ParveenPhoto. pic.twitter.com/rwjrTmH0tX
— The New Indian Express (@NewIndianXpress) October 17, 2023
While Justice S K Kaul agreed with the CJI on grant of certain rights to queer couples, Justice S Ravindra Bhat said that he both agreed and disagreed with the views of CJI Chandrachud on certain points.
Asserting that homosexuality or queerness was “not an urban concept or restricted to upper class of society”, CJI Chandrachud said, “To imagine queer as existing only in urban spaces would be like erasing them, queerness can be regardless of one’s caste or class.”
CJI Chandrachud also said, “Withdrawal of the State from the domestic space leaves the vulnerable party unprotected. Thus all intimate activities within private space cannot be said to be beyond State’s scrutiny.”
The Chief Justice also directed the police to conduct a preliminary enquiry before registering FIR against queer couple over their relationship, adding that the Centre, States and Union Territories must ensure that the queer community was not discriminated against.
Other directions of the CJI to end discrimination against queer people include: 1. No discrimination in access to goods and services, 2. A hotline for the queer community, 3. Safe houses for queer couple, 4. ensure inter-sex children are not forced to undergo operations, 5. No person shall be forced to undergo any hormonal therapy, 6. Police should not force queer persons to return to their natal family.
Meanwhile, Solicitor General (SG) Tushar Mehta said that the Centre would form a panel to decide the rights, and entitlements of persons in queer unions.
Here are highlights from the CJI’s remarks:
On sex-change operation: States, Union Territories to ensure that inter-sex children are not allowed sex-change operation at an age when they cannot fully comprehend its consequences, the CJI said
On hetereosexual unions of trans people: CJI Chandrachud said that the marriage between a trans man and a trans woman can be registered under the Special Marriage Act as they are in a heterosexual relationship
On whether the SMA needs a change: The top judge also remarked that only the Parliament can decide whethere there was a need for change in the regime of the Special Marriage Act. “If Special Marriage Act is struck down, it will take the country to pre-Indpendence era. If the Court takes the second approach and reads words into the SMA, it will be taking up the role of legislature.”
The CJI added that the top court was not equipped to undertake such an exercise of reading meaning into the statute and that they must be careful to not enter into legislative domain
No harassment of queer people by cops: “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,” the CJI said.
Justice Sanjay Kishan Kaul said that legal recognition of non-heterosexual unions was a step towards marriage equality.
While hearing the matter on May 11, the top court bench had observed it cannot give a declaration on same-sex unions on the anticipation as to how Parliament is likely to respond to it. Follow The New Indian Express channel on WhatsApp
The Supreme Court is all set to announce its verdict on a batch of pleas seeking legal recognition of same sex marriages in the country.
A five-judge constitution bench headed by Chief Justice of India (CJI) D Y Chandrachud and comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and P S Narasimha, had a 10-day-long hearing on the matter.
CJI Chandrachud on Tuesday stated, “The right to enter into Union includes the right to choose one’s partner and the right to recognition of that union,” adding that failure to recognise it would be discriminatory. “Failure of State to recognize the bouquet of rights flowing from a queer relationship amounts to discrimination.”googletag.cmd.push(function() {googletag.display(‘div-gpt-ad-8052921-2’); });
He went on to add that it would also be discriminatory if the law assumed that only heterosexual couples can be good parents.
On the topic of adoption by queer coiples, the CJI said that, “The Juvenile Justice (Care and Protection of Children) Act, 2015, does not preclude unmarried couples from adopting. The Union of India has not proved that precluding unmarried couples from adopting is in the best interest of the child. So, the Central Adoption Resource Authority has exceeded its authority in barring unmarried couples.”
“There is no material on record to prove that only a married heterosexual couple can provide stability to a child,” he said.
#SameSexMarriage | Right to enter into a union cannot be restricted on the basis of sexual orientation: CJI Chandrachud.
Express photo | @ParveenPhoto. pic.twitter.com/rwjrTmH0tX
— The New Indian Express (@NewIndianXpress) October 17, 2023
While Justice S K Kaul agreed with the CJI on grant of certain rights to queer couples, Justice S Ravindra Bhat said that he both agreed and disagreed with the views of CJI Chandrachud on certain points.
Asserting that homosexuality or queerness was “not an urban concept or restricted to upper class of society”, CJI Chandrachud said, “To imagine queer as existing only in urban spaces would be like erasing them, queerness can be regardless of one’s caste or class.”
CJI Chandrachud also said, “Withdrawal of the State from the domestic space leaves the vulnerable party unprotected. Thus all intimate activities within private space cannot be said to be beyond State’s scrutiny.”
The Chief Justice also directed the police to conduct a preliminary enquiry before registering FIR against queer couple over their relationship, adding that the Centre, States and Union Territories must ensure that the queer community was not discriminated against.
Other directions of the CJI to end discrimination against queer people include: 1. No discrimination in access to goods and services, 2. A hotline for the queer community, 3. Safe houses for queer couple, 4. ensure inter-sex children are not forced to undergo operations, 5. No person shall be forced to undergo any hormonal therapy, 6. Police should not force queer persons to return to their natal family.
Meanwhile, Solicitor General (SG) Tushar Mehta said that the Centre would form a panel to decide the rights, and entitlements of persons in queer unions.
Here are highlights from the CJI’s remarks:
On sex-change operation: States, Union Territories to ensure that inter-sex children are not allowed sex-change operation at an age when they cannot fully comprehend its consequences, the CJI said
On hetereosexual unions of trans people: CJI Chandrachud said that the marriage between a trans man and a trans woman can be registered under the Special Marriage Act as they are in a heterosexual relationship
On whether the SMA needs a change: The top judge also remarked that only the Parliament can decide whethere there was a need for change in the regime of the Special Marriage Act. “If Special Marriage Act is struck down, it will take the country to pre-Indpendence era. If the Court takes the second approach and reads words into the SMA, it will be taking up the role of legislature.”
The CJI added that the top court was not equipped to undertake such an exercise of reading meaning into the statute and that they must be careful to not enter into legislative domain
No harassment of queer people by cops: “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,” the CJI said.
Justice Sanjay Kishan Kaul said that legal recognition of non-heterosexual unions was a step towards marriage equality.
While hearing the matter on May 11, the top court bench had observed it cannot give a declaration on same-sex unions on the anticipation as to how Parliament is likely to respond to it. Follow The New Indian Express channel on WhatsApp
