News Analysis India

Tag: Supreme Court verdict

  • Same-sex marriage verdict: Right to enter union includes right to choose partner, its recognition, says CJI

    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

  • SC to deliver verdict on legal validation of same sex marriages on Tuesday

    Express News Service

    NEW DELHI: The Supreme Court will deliver on Tuesday its judgement on pleas seeking legal recognition of same-sex marriages in India.

    On May 11, after an extensive 10-day-long hearing, a Constitution bench led by the Chief Justice of India (CJI) DY Chandrachud and comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha had reserved their verdict.

    The top court’s judgement will decide as to whether the words ‘man’ and ‘woman’ can be replaced with the word person and the words ‘husband’ and ‘wife’ can be replaced with the word ‘spouse’ in the Special Marriage Act (SMA).

    The bench had also said that 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++ people to lead a “dignified” life like heterosexuals. LGBTQIA++ stands for lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual, and ally persons.

    Notably on the first day of the hearing, the bench had defined the contours of the pleas and had said that it would not go into personal laws governing marriage and instead will look into the issue of registration of same-sex marriages under the Special Marriage Act.

    Another significant development which took place during the hearing was willingness to consider if certain rights could be conferred upon same-sex couples short of legal recognition as marriage.

    While hearing the matter on May 11, the 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.

    Meanwhile, the petitioners in their rejoinder submission on Thursday last week submitted that they were not seeking the interpretation of every gendered word in the SMA in a gender-neutral way. They said they were only assailing those parts of the SMA that require a Constitution-compliant reading on grounds of discrimination.

    Senior advocate Abhishek Manu Singhvi said that the state by excluding same-sex couples from civil marriage was declaring that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples.

    “When it comes to the use of gendered terms to specifically address gendered imbalances of power and therefore achieve substantive equality, limiting such terms to their gendered, heterosexual context is what is consistent with the law’s underlying thrust. Civil union is not a solution, not an equal alternative. Civil unions do not address the constitutional anomaly presented by exclusion of non-heterosexual couples from the institution of marriage,” Singhvi said.

    Senior Advocate Raju Ramachandran said that lack of recognition leads to the denial of equal protection under the law.

    Arguments were also made by Senior advocates KV Vishwanathan, Anand Grover, Geeta Luthra, Maneka Guruswamy, and advocates Karuna Nundy, and Vrinda Grover.

    The petitioners underlining the real question before the court which was “who would take a call on what constitutes a valid marriage and between whom”, also contended that the Parliament was aware of the concept of “gays” and “lesbians” even while the Special Marriage Act was promulgated in 1954 but there was a “conscious omission” to not recognise same sex marriages.

    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 Centre’s stand has been that the issue of legal recognition of same-sex marriages through the SMA should be left for the Parliament to decide since it is the appropriate forum to conceive several situations which would arise from recognising the same “legally.”

    The Centre had also told the top court that the governments of Rajasthan, Andhra Pradesh and Assam had opposed the petitioners’ contention seeking legal endorsement for such wedlock.

    Stressing on the fact that all the civil as well as criminal laws define “man and woman in conventional sense”, the Centre had submitted that the right to marry does not include the right to compel the state to create a new definition of ‘marriage’.

    On May 3, the Centre had told the court it will constitute a committee headed by the cabinet secretary to examine the administrative steps that could be taken for addressing “genuine humane concerns” of same-sex couples without going into the issue of legalising their marriage.

    The Centre’s submission was pursuant to the apex court asking it on April 27 whether social welfare benefits like opening joint bank accounts, nominating life partner in provident funds, gratuity and pension schemes can be extended to same-sex couples without going into the issue of legal sanction to their marriage.

    (With additional inputs from PTI) Follow The New Indian Express channel on WhatsApp

    NEW DELHI: The Supreme Court will deliver on Tuesday its judgement on pleas seeking legal recognition of same-sex marriages in India.

    On May 11, after an extensive 10-day-long hearing, a Constitution bench led by the Chief Justice of India (CJI) DY Chandrachud and comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha had reserved their verdict.

    The top court’s judgement will decide as to whether the words ‘man’ and ‘woman’ can be replaced with the word person and the words ‘husband’ and ‘wife’ can be replaced with the word ‘spouse’ in the Special Marriage Act (SMA).googletag.cmd.push(function() {googletag.display(‘div-gpt-ad-8052921-2′); });

    The bench had also said that 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++ people to lead a “dignified” life like heterosexuals. LGBTQIA++ stands for lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual, and ally persons.

    Notably on the first day of the hearing, the bench had defined the contours of the pleas and had said that it would not go into personal laws governing marriage and instead will look into the issue of registration of same-sex marriages under the Special Marriage Act.

    Another significant development which took place during the hearing was willingness to consider if certain rights could be conferred upon same-sex couples short of legal recognition as marriage.

    While hearing the matter on May 11, the 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.

    Meanwhile, the petitioners in their rejoinder submission on Thursday last week submitted that they were not seeking the interpretation of every gendered word in the SMA in a gender-neutral way. They said they were only assailing those parts of the SMA that require a Constitution-compliant reading on grounds of discrimination.

    Senior advocate Abhishek Manu Singhvi said that the state by excluding same-sex couples from civil marriage was declaring that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples.

    “When it comes to the use of gendered terms to specifically address gendered imbalances of power and therefore achieve substantive equality, limiting such terms to their gendered, heterosexual context is what is consistent with the law’s underlying thrust. Civil union is not a solution, not an equal alternative. Civil unions do not address the constitutional anomaly presented by exclusion of non-heterosexual couples from the institution of marriage,” Singhvi said.

    Senior Advocate Raju Ramachandran said that lack of recognition leads to the denial of equal protection under the law.

    Arguments were also made by Senior advocates KV Vishwanathan, Anand Grover, Geeta Luthra, Maneka Guruswamy, and advocates Karuna Nundy, and Vrinda Grover.

    The petitioners underlining the real question before the court which was “who would take a call on what constitutes a valid marriage and between whom”, also contended that the Parliament was aware of the concept of “gays” and “lesbians” even while the Special Marriage Act was promulgated in 1954 but there was a “conscious omission” to not recognise same sex marriages.

    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 Centre’s stand has been that the issue of legal recognition of same-sex marriages through the SMA should be left for the Parliament to decide since it is the appropriate forum to conceive several situations which would arise from recognising the same “legally.”

    The Centre had also told the top court that the governments of Rajasthan, Andhra Pradesh and Assam had opposed the petitioners’ contention seeking legal endorsement for such wedlock.

    Stressing on the fact that all the civil as well as criminal laws define “man and woman in conventional sense”, the Centre had submitted that the right to marry does not include the right to compel the state to create a new definition of ‘marriage’.

    On May 3, the Centre had told the court it will constitute a committee headed by the cabinet secretary to examine the administrative steps that could be taken for addressing “genuine humane concerns” of same-sex couples without going into the issue of legalising their marriage.

    The Centre’s submission was pursuant to the apex court asking it on April 27 whether social welfare benefits like opening joint bank accounts, nominating life partner in provident funds, gratuity and pension schemes can be extended to same-sex couples without going into the issue of legal sanction to their marriage.

    (With additional inputs from PTI) Follow The New Indian Express channel on WhatsApp

  • Here is what dissenting SC judge Justice Nagarathna said on demonetisation

    By PTI

    NEW DELHI: Justice B V Nagarathna of the Supreme Court, who gave a dissenting verdict on demonetisation on Monday, said the scrapping of the whole series of Rs 500 and Rs 1,000 currency notes had to be done through a legislation and not through a gazette notification as Parliament cannot be left aloof in a matter of such critical importance.

    The apex court in a 4:1 majority verdict upheld the government’s 2016 decision to demonetise the Rs 1,000 and Rs 500 denomination notes, saying the decision-making process was not flawed.

    In her minority verdict, Justice Nagarathna held that the demonetisation of the Rs 500 and Rs 1,000 currency notes was vitiated and unlawful.

    Justice Nagarathna, who was the juniormost judge in the Constitution bench also comprising justices S A Nazeer, B R Gavai, A S Bopanna and V Ramasubramanian, said the demonetisation of an entire series of notes at the Centre’s instance is a far more serious issue that has wider implications on the economy and the citizens of the country.

    Observing that there was no independent application of mind by the Reserve Bank of India (RBI), Justice Nagarathna said the entire exercise was carried out in 24 hours.

    “In my view, the power of the central government being vast has to be exercised through a plenary legislation rather than by an executive act by issuance of notification. It is necessary that Parliament, which consists of the representatives of the people of the country, discusses the matter and thereafter, approves the matter,” she said.

    ALSO READ | Misleading to say SC upheld demonetisation; verdict doesn’t deal with outcome, says Congress

    The judge said the proposal originated from the Centre while the RBI’s opinion was sought and such an opinion given by the central bank cannot be construed as a “recommendation” under section 26(2) of the RBI Act.

    “Parliament is often referred to as a nation in a miniature. It is the basis of democracy. Parliament provides representation to the people of the country and makes their voices heard. Without Parliament, democracy cannot thrive. Parliament, which is the centre of democracy, cannot be left aloof in a matter of such critical importance,” she said.

    The top court’s judgment came on a batch of 58 petitions challenging the demonetisation exercise announced by the Centre on November 8, 2016.

    NEW DELHI: Justice B V Nagarathna of the Supreme Court, who gave a dissenting verdict on demonetisation on Monday, said the scrapping of the whole series of Rs 500 and Rs 1,000 currency notes had to be done through a legislation and not through a gazette notification as Parliament cannot be left aloof in a matter of such critical importance.

    The apex court in a 4:1 majority verdict upheld the government’s 2016 decision to demonetise the Rs 1,000 and Rs 500 denomination notes, saying the decision-making process was not flawed.

    In her minority verdict, Justice Nagarathna held that the demonetisation of the Rs 500 and Rs 1,000 currency notes was vitiated and unlawful.

    Justice Nagarathna, who was the juniormost judge in the Constitution bench also comprising justices S A Nazeer, B R Gavai, A S Bopanna and V Ramasubramanian, said the demonetisation of an entire series of notes at the Centre’s instance is a far more serious issue that has wider implications on the economy and the citizens of the country.

    Observing that there was no independent application of mind by the Reserve Bank of India (RBI), Justice Nagarathna said the entire exercise was carried out in 24 hours.

    “In my view, the power of the central government being vast has to be exercised through a plenary legislation rather than by an executive act by issuance of notification. It is necessary that Parliament, which consists of the representatives of the people of the country, discusses the matter and thereafter, approves the matter,” she said.

    ALSO READ | Misleading to say SC upheld demonetisation; verdict doesn’t deal with outcome, says Congress

    The judge said the proposal originated from the Centre while the RBI’s opinion was sought and such an opinion given by the central bank cannot be construed as a “recommendation” under section 26(2) of the RBI Act.

    “Parliament is often referred to as a nation in a miniature. It is the basis of democracy. Parliament provides representation to the people of the country and makes their voices heard. Without Parliament, democracy cannot thrive. Parliament, which is the centre of democracy, cannot be left aloof in a matter of such critical importance,” she said.

    The top court’s judgment came on a batch of 58 petitions challenging the demonetisation exercise announced by the Centre on November 8, 2016.

  • SC verdict on EWS is setback to century-long social justice struggle: TN CM Stalin

    The Supreme Court had by a majority view of 3:2, upheld the validity of the 103rd Constitution amendment providing 10 per cent reservation for the EWS.

  • Congress says amendment for 10% EWS reservation was result of process initiated under UPA

    By PTI

    NEW DELHI: The Congress on Monday welcomed the Supreme Court verdict upholding the validity of providing 10 per cent reservation to people belonging to the economically weaker sections and said the amendment providing for it was the result of a process initiated by the Manmohan Singh government.

    The Opposition party also said the Modi government is yet to clarify its position on an updated caste census.

    In a landmark verdict, the Supreme Court by a majority view of 3:2 upheld the validity of the 103rd Constitution amendment providing 10 per cent reservation to people belonging to the economically weaker sections (EWS) in admissions and government jobs.

    In a statement, Congress general secretary in-charge communications Jairam Ramesh said the Congress welcomes the Supreme Court judgment upholding the 103rd Constitutional Amendment that provides for the 10 per cent reservation quota for Economically Weaker Sections belonging to castes other than Scheduled Castes, Scheduled Tribes, and OBCs.

    “The amendment itself was the result of a process initiated by Dr Manmohan Singh’s government in 2005-06 with the appointment of the Sinho Commission that submitted its report in July 2010. Thereafter, widespread consultations were held and the Bill was ready by 2014. It took the Modi Sarkar five years to get the Bill enacted,” he said.

    Ramesh said socio-economic and caste census was completed by 2012, when he was the Union rural development minister, and the Modi government is yet to clarify its position on an updated caste census, something the Congress supports and demands.

    The apex court ruled that the quota does not violate the basic structure of the Constitution.

    A five-judge constitution bench headed by Chief Justice U U Lalit pronounced four separate verdicts on 40 petitions challenging the validity of the 103rd Constitution amendment promulgated by the Centre in 2019.

    While Justices Dinesh Maheshwari, Bela M Trivedi and J B Pardiwala upheld the law, Justice S Ravindra Bhat along with the Chief Justice of India shot down the same in their minority view.

    NEW DELHI: The Congress on Monday welcomed the Supreme Court verdict upholding the validity of providing 10 per cent reservation to people belonging to the economically weaker sections and said the amendment providing for it was the result of a process initiated by the Manmohan Singh government.

    The Opposition party also said the Modi government is yet to clarify its position on an updated caste census.

    In a landmark verdict, the Supreme Court by a majority view of 3:2 upheld the validity of the 103rd Constitution amendment providing 10 per cent reservation to people belonging to the economically weaker sections (EWS) in admissions and government jobs.

    In a statement, Congress general secretary in-charge communications Jairam Ramesh said the Congress welcomes the Supreme Court judgment upholding the 103rd Constitutional Amendment that provides for the 10 per cent reservation quota for Economically Weaker Sections belonging to castes other than Scheduled Castes, Scheduled Tribes, and OBCs.

    “The amendment itself was the result of a process initiated by Dr Manmohan Singh’s government in 2005-06 with the appointment of the Sinho Commission that submitted its report in July 2010. Thereafter, widespread consultations were held and the Bill was ready by 2014. It took the Modi Sarkar five years to get the Bill enacted,” he said.

    Ramesh said socio-economic and caste census was completed by 2012, when he was the Union rural development minister, and the Modi government is yet to clarify its position on an updated caste census, something the Congress supports and demands.

    The apex court ruled that the quota does not violate the basic structure of the Constitution.

    A five-judge constitution bench headed by Chief Justice U U Lalit pronounced four separate verdicts on 40 petitions challenging the validity of the 103rd Constitution amendment promulgated by the Centre in 2019.

    While Justices Dinesh Maheshwari, Bela M Trivedi and J B Pardiwala upheld the law, Justice S Ravindra Bhat along with the Chief Justice of India shot down the same in their minority view.