On Tuesday, a five-judge Supreme Court panel rejected legalizing same-sex unions and instead recommended that the legislature address the issue. Three justices disagreed with the two judges who supported the freedom of homosexual couples to form civil unions. The majority of justices also rejected the claim that gay couples had the right to adopt, upholding the CARA rules that exclude gay and unmarried couples from membership.
While noting that marriage is neither static or stationary and has experienced a sea of change, CJI asserted that the right to marriage is not a basic right and that parliament must determine whether marriage equality is legalized, which was the majority opinion.
Right to form a union
The ability to join a union involves the freedom to choose one’s union and one’s partner. According to the CJI, it is discriminatory to ignore such associations. The CJI instructed governments to refrain from discriminating against this right of the gay population, stating that the right to engage into a relationship cannot be prohibited on the basis of sexual orientation. According to current rules, heterosexual partnerships between transgender and queer persons are permitted, CJI stated.
In this case, Justice SK Kaul concurred with the CJI’s ruling. “Legal recognition of non-heterosexual unions is step towards marriage equality,” Justice Kaul said. The three more judges on the bench, however, disagreed with this instruction.
There cannot be an unqualified right to marry that is to be considered as a basic right, according to Justice Ravindra Bhat, who agreed with the Chief Justice of India on several grounds. “While acknowledging that there is a right to relationships, we are clear that this right is covered by Article 21. Intimacy and the freedom to choose a mate are included. They have the same constitutional right to enjoyment as all other citizens, according to Justice Bhat.
Justice Bhat said that although all LGBT people have the freedom to choose their partners, the state is not required to recognize the range of rights that result from such a union. Justice Narasimha claims to share Justice Ravindra Bhat’s viewpoint.
SC cannot invalidate SMA’s rules.
Regarding the Special Marriage Act of 1954’s provisions being read down, the CJI said that if the court were to insert new language into the law, it would be acting in the capacity of the legislature. He issued a warning that the court must exercise caution to stay out of legislative territory. The CJI said that it is up to Parliament to determine if the Special Marriage Act’s regulatory structure has to alter.
No rights to adopt
Three judges disagreed with the two judges who ruled in favor of the homosexual couples’ ability to adopt. According to CJI DY Chandrachud, there is no evidence to support the claim that a kid can only be raised stablely by a married heterosexual couple. He pointed out that the adoption laws discriminate against gay couples and hence are unconstitutional. He pointed out that Article 15 of the Constitution is violated by the Central Adoption Resource Authority (CARA) circular that denies homosexual couples the right to adopt.
On the subject of LGBT couples’ ability to adopt, Justice Bhat, Justice Hima Kohli, and Justice Narasimha dissented from the Chief Justice of India and raised certain issues.
prejudice towards gay people
The CJI also offered guidelines for preventing violence and prejudice towards LGBT couples. Governments at the state and federal levels have been ordered to make sure that heterosexual and homosexual couples may enjoy the same products and services without facing any discrimination.
The decision was made months after the court heard twenty petitions over ten days from same-sex couples, transgender people, and LGBTQIA+ activists who argued that the current marriage laws discriminate against the LGBTQIA+ community because they do not recognize non-heterosexual unions. During the 10 days of proceedings, the LGBTQIA+ community’s rights were the subject of significant discussions.
The petitions were challenged by the Bharatiya Janata Party (BJP)-led government on the grounds that such recognition would “create havoc” in society and that the petitioners were members of the “urban elite” and did not speak for the mass of Indians.
The petitioners, who are couples of the same sex, claimed that marriage entails a number of rights, benefits, and duties that are “bestowed and protected by law”. Legal advantages such as tax advantages, medical rights, inheritance, and adoption are among these rights. In a nation with millions of LGBTQIA+ citizens, the issue is of “seminal importance,” in the words of Chief Justice of India D Y Chandrachud.
The top court also noted the Union’s declaration that a committee will be formed to look into the rights and advantages that may be provided to LGBT couples.
