New Delhi, October 17 (Press Ki Taquat)
The Supreme Court on Tuesday refused to allow same-sex marriages in India even as it directed the government to set up a high-powered committee headed by the Cabinet Secretary to decide the rights and entitlements of persons in queer unions.
A five-judge Constitution Bench headed by the Chief Justice of India DY Chandrachud – which reserved the verdict on May 11 on the contentious issue after hearing marathon arguments for 10 days during April-May – refused to grant legal recognition to same-sex marriages.
There were four verdicts – one each by CJI Chandrachud, Justice Sanjay Kishan Kual, Justice S Ravindra Bhat and Justice PS Narasimha.
Justice Narasimha agreed with Justice Bhat’s view that “marriage as an institution precedes the state. This implies that marriage structure exists regardless of the state. Terms of marriage are independent of the state, and its sources are external.”
CJI Chandrachud declared that failure of the state to recognise the bouquet of rights flowing from a queer relationship amounted to discrimination.
“Right to enter into union cannot be restricted on the basis of sexual orientation. Transgender persons in heterosexual relationships have the right to marry under the existing laws including personal laws…To imagine queer as existing only in urban spaces would be like erasing them, queerness can be regardless of one’s caste or class,” the CJI said.
Agreeing with the CJI, Justice Kaul said the state must ensure that queer couples faced no discrimination in accessing basic needs and societal tolerance. Giving the right of marriage to queer couples by court was not possible as it’s a legislative exercise, Justice Kaul said.
Noting that same-sex relationships have been recognised since antiquity — not just for sexual activities, but as relationships for emotional fulfilment, Justice Kaul referred to ancient texts and certain Sufi traditions.
Despite the decriminalisation of Section 377 of the Indian Penal Code, the petitioners cannot claim a fundamental right for same-sex marriage to be recognised under the laws of the country, it had said in an affidavit.
However, the affidavit stated that though the Centre limits its recognition to heterosexual relationships, there may be other forms of marriages or unions or personal understandings of relationships between individuals in a society and these “are not unlawful”.The governments of Assam, Andhra Pradesh and Rajasthan had opposed petitions seeking legal recognition for same-sex marriage, citing public opinion and adverse implications for the social and family system.
