New Delhi: The Supreme Court of India in a 3:2 majority judgment has held that law does not recognise the right to marry for same sex couples and its up to parliament to make a legislation on this, while delivering its verdict on a host of petitions seeking legal validation for same-sex marriage.
Here you can watch the verdict telecasted live:
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A five-judge constitution bench headed by Chief Justice D Y Chandrachud had on May 11 reserved its verdict on the pleas after a marathon hearing of 10 days. The other members of the bench are Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and P S Narasimha.
- Same sex marriage verdict
1. No legal recognition to Same-Sex marriage
2. No constitutional or fundamental right to civil unions
3. SC says Centre's high-powered committee to examine concerns of same sex couples. - Fourth judge on the bench Justice Hima Kohli agrees with Justice Bhat, both have disagreed with the CJI's judgement.
- Justice Bhat approves with the high-powered committee mooted by the Centre during arguments but holds there is no right to civil unions or any entitlement flowing from such unions.
- Justice Bhat agrees with CJI, Justice Kaul and says there is no fundamental right to marry guaranteed by Constitution.
- Justice Bhat disagrees with CJI- Justice Bhat has recorded his disagreement with the CJI on the right of queer couples to adopt, in his judgement. Bhat says court cannot create a legal framework for queer couples and it is for the legislature, as there are several aspects to be taken into consideration.
- Bhat concurs with the CJI on non-viability of reading down Special Marriage Act to include heterosexual couples. He says that there can't a right to civil unions through judicial orders. He disagrees with the CJI on a right to civil unions too.
- Bhat says the judgment of CJI propounded a theory of a unified thread of rights and how lack of recognition violated rights. Justice Bhat added however, when the law is silence, Article 19(1)(a) does not compel the State to enact a law to facilitate that expression.
- Justice Bhat says that courts can't create a social or legal institution for non-heterosexual couples and there is no unqualified right to marry and a consequent recognition by the state.
- Justice Kaul agrees with CJI- "CJI's judgment recognises civil unions and obligates the State to ensure queer couples aren't discriminated and get all rights." Justice SK Kaul agrees with the CJI on recognition of civil unions. The principle of equality demands all people have the right to unions irrespective of sex, gender or orientation. It is a five judge bench, two judges have read their judgment.
- Justice Kaul says this moment is an opportunity to remedy the historical injustice and discrimination and therefore, governance need to grant rights to such unions or marriages.
- Justice Kaul says that he agrees with CJI’s judgment and added that it is not 'res integra' for a constitutional court to uphold the rights and the court has been guided by the constitutional morality and not social morality. Justice Kaul says these unions are to be recognized as a union to give partnership and love.
Key conclusions of CJI's judgment
It's for Parliament and state legislatures to legally recognise queer marriages
Cannot nix Special Marriage Act
Queer couples have a right to enter into union
It is the State's duty to ensure such unions and couples get protection and bouquet of rights.
Centre and states should create hotline for queer community, and also create safe houses for queer couple and ensure inter-sex children are not forced to undergo operations.
- Supreme Court directs that "no person shall be forced to undergo any hormonal therapy."
- The CJI directs Centre and states that queer community is not discriminated against and there is no discrimination in access to goods and services.
- Chandrachud: SC strikes down CARA regulation restricting queer and unmarried couples from adoption
- Chandrachud says this court has recognized that queer persons cannot be discriminated upon. He said that material benefits and services flowing to heterosexual couples and denied to queer couples will be a violation of their fundamental right.
- "There is no material on record to prove that only a married heterosexual couple can provide stability to a child. "It cannot be assumed that unmarried couples are not serious about their relationship."
- On the aspect of adoption by same sex couples, the CJI said differentia between married couples and unmarried couples has no reasonable nexus with the objective of CARA.
- The apex court boss says that this court has recognized that queer persons cannot be discriminated upon. The material benefits and services flowing to heterosexual couples and denied to queer couples will be a violation of their fundamental right.
- The CJI says that a transgender person is in a heterosexual relationship, such a marriage is recognized by the law. Since a transgender person can be in a heterosexual relationship, a union between a transman and a transwoman or vice versa can be registered under Special Marriage Act, he adds.
- He says choosing a life partner is an integral part of choosing one's course of life. He adds some may regard this as the most important decision of their life and this right goes to the root of the right to life and liberty under Article 21.
- Chandrachud says that queer couples must also have access to certain rights and benefits like heterosexual couples. He says that for the full enjoyment of such relationships, such unions need recognition and there cannot be denial of basic goods and services. The state can indirectly infringe upon freedom if it does not recognize the same.
- The CJI says right to enter into union must lead to a recognition by the State for fulfillment of such a right.
- He says humans live in complex societies and our ability to feel love and connection with one another makes us feel human. He said we have an innate need to be seen and see and the need to share our emotions make us who we are. The CJI adds these relationships may take many forms, natal families, romantic relationships etc.. the need to form part of family is core part of the human trait and is important for self development.
- The right to enter into Union includes the right to choose one's partner and the right to recognition of that union, Chandrachud says.
- The CJI says the court Can't redraft Special Marriage Act or other legal provisions to substitute man and woman or husband & wife. He said, "There can't be judicial legislation."
- "We cannot hold the Special Marriage Act as unconstitutional just because it doesn't recognize same-sex marriages."
- The court cannot compel Parliament or state assemblies to create a new institution of marriage, Chandrachud says, adding that "marriage can't remain a static, stagnant or unchanging institution."
- The CJI says institution of marriage has changed which characterize the institution, and from sati and widow remarriage from interfaith marriage, marriage has metamorphized. He says that marriage has changed and it is an irrefutable truth and many such changes have come from the parliament.
- The CJI says Doctrine of separation of power can't stop courts from enforcing fundamental rights and this court can't make laws but can enforce laws.
- The top court chief says that homosexuality or queerness is not an urban concept or restricted to the upper classes of the society. Queerness is not urban elite, it is everywhere, he adds.
- Chief Justice of India DY Chandrachud says he has dealt with the issue of judicial review and separation of powers. He said the doctrine of separation of powers means that each of the three organs of state perform distinct functions and no branch can function any others' function.
- The five-judge Constitution bench assembles for delivering its verdict on pleas seeking to legalise same-sex marriage under Special Marriage Act.
