Chief Justice: No Recognition of Same-Sex Marriage, Calls for Legal Changes

The Supreme Court has dealt a significant blow to same-sex marriages in India. The Supreme Court has rejected the recognition of same-sex marriages. The Chief Justice of India (CJI) has stated that this matter falls under the jurisdiction of the legislature. He has provided guidance to the central government on how to properly address the rights of the LGBTQ+ community. Requests for the recognition of same-sex marriages were under the consideration of the Supreme Court, garnering attention across the country. The Supreme Court had already decriminalized same-sex relationships through legal reforms. However, after a lengthy hearing on May 11, 2023, the constitutional bench kept its decision under wraps, only revealing it recently.

Regarding the legal recognition of same-sex marriages, the Supreme Court has issued separate directions from five judges. Chief Justice Divai Chandrachud stated that the court cannot make laws, it can only interpret and implement them. Amendments to the Special Marriage Act would need to be carried out by the legislature to accommodate these changes.

Applicants seeking support for same-sex marriages have requested amendments to the Special Marriage Act. In addition, the central government was found to be against recognizing these marriages within Indian society. A total of 21 petitions filed in the Supreme Court argued that in 2018, the Supreme Court, in its constitutional bench, partially struck down Section 377 of the Indian Penal Code, which considered homosexuality a crime.

The Court Sets an Example with Transgenders

On applications seeking recognition of same-sex marriages, CJI DY Chandrachud remarked that if a transgender individual wishes to marry someone of the opposite gender, it would be considered valid. However, for such marriages to be recognized, the transgender person must be male and the other party female. Transgender men have the right to marry women, and transgender women can marry men. If this recognition is not granted, it would be a violation of the Transgender Act.

The Bench of Five Judges Heard the Case

Chief Justice Divai Chandrachud, Justice Hima Kohli, Justice Sanjay Kishan Kaul, Justice Ravindra Bhatt, and Justice PS Narasimha of the constitutional bench heard the case. Chief Justice Chandrachud, Justice Kaul, Justice Bhatt, and Justice Narasimha handled the arguments. Chief Justice Chandrachud initiated the proceedings.

The Courtroom is Live; Homosexuality is Not Limited to Urban Areas

Justice Chandrachud said that homosexuality or queerness is not confined solely to urban areas. It isn’t limited to those who speak English and have good jobs. Rural women working in fields can also have a different sexual orientation. People who are distinct are not confined to urban or upper-class populations; they exist as humans just like anyone else.

In cities, not everyone can be called “queer.” Sexual orientation is not based on a person’s caste, class, or socio-economic status. Marriage is a changing institution but calling it only exclusive is incorrect. Changes have been made in marriage laws by various legislatures.

Supreme Court Affirms Rights to Choose Life Partners for All

The Supreme Court has affirmed that every individual has the right to choose their life partner.

Chief Justice Chandrachud stated that transgender women have the right to marry cisgender men, and likewise, transgender men have the right to marry cisgender women. Every person has the right to choose their life partner. These relationships can take various forms and should be understood within the framework of Article 15, the fundamental right to non-discrimination.

We live in complex societies where our love and cooperation with each other make us human. We must recognize that our Constitution also addresses Article 15, which prohibits discrimination based on gender, as well as other important legal aspects.

The government’s interference in private spaces can lead to an insecure situation. Therefore, all private activities will be beyond the government’s reach, as it does not have the authority to interfere.

If the current petitions base their arguments on the fact that Section 4 of the Special Marriage Act is unconstitutional because it doesn’t consider everyone, then this section may have to be amended or expanded in order to accommodate more diverse forms of relationships.

If the Special Marriage Act is repealed, the country will return to a time before independence. If the court chooses a different approach and adds new elements to the law, the parliament will need to do its job.

If a transgender person is in a same-sex relationship, this type of marriage can be recognized legally through legislation. Transgender individuals may engage in various forms of relationships, and the Special Marriage Act provides for this recognition.

Demand for Legal Recognition of Same-Sex Marriage

After 20 petitions requesting legal recognition of same-sex marriages were submitted, the Supreme Court conducted a seven-day hearing. Solicitor General Tushar Mehta informed the Supreme Court that the government is preparing to establish a committee to address central issues. He emphasized that this committee would not directly enter the debate on the legality of same-sex marriages but rather gather information on problems faced by same-sex couples, allowing them to express their concerns.

Committee’s Focus on Issues in Same-Sex Marriages

Mehta clarified that the committee’s purpose was not to decide on the legal recognition of same-sex marriages but to address social concerns and potential solutions. The government is open to discussions on how to ensure the welfare and well-being of the LGBTQ+ community. It was stressed that this matter involves multiple ministries cooperating rather than a single ministry taking the lead.

Impact of Legal Recognition on Same-Sex Marriages

The Supreme Court raised concerns about whether legalizing same-sex marriages would create new legal categories for different groups within the LGBTQIA+ community, and how this might affect the application of existing laws. The complexity of such categorization and its potential effects were discussed.

Discussion on Gender Identity and Marriage

Some individuals do not want to be categorized based on gender or prefer to have their gender fluidity recognized. The court pondered whether the legal system could appropriately address this issue and how to determine who can officiate same-sex marriages and who should be recognized as married.

The Role of Parliament in Addressing the Issue

The Chief Justice of India clarified that there is no doubt that Parliament has the authority to intervene in these petitions to address issues faced by LGBTQ+ individuals. These cases present questions about the extent of the court’s jurisdiction and how it can approach the matter.

Special Marriage Act and Personal Rights

The Supreme Court also discussed whether individuals seeking same-sex marriages could use the Special Marriage Act to address their concerns. It was mentioned that the Act caters to personal rights and, if necessary, may require modifications to accommodate LGBTQ+ marriages.

Challenges Surrounding LGBTQ+ Parenthood

The court raised concerns regarding the parental rights of LGBTQ+ couples, especially with regards to children adopted or raised in such families. The Bench did not agree with the argument that heterosexual couples are inherently better suited to raise children than same-sex couples.

On the second day of the hearing on April 19, the Central Government appealed that in this case, all states and union territories should also be involved. Abhishek Manu Singhvi, who represented the petitioner, stated that adoption, surrogacy, inter-state inheritance, freedom, adoption, and the appointment of Dayalu Sarkar were essential benefits obtained through marriage.

At the same time, the Supreme Court told the government that it cannot dictate the urban class. Especially when the government hasn’t provided any data supporting this claim. CJI Chandrachud stated, “This urban class can be a different category because people now need to come out in the open in urban areas.”

April 18, First Day of the Hearing: Same-Sex Marriage Petitions Being Considered by a Constitution Bench On the first day of the hearing on April 18, the Supreme Court said that without going into the realm of personal laws, it has to be seen whether same-sex couples can be granted rights under the Special Marriage Act of 1954. The Central Government, represented by the Solicitor General, had stated that these petitions reveal the views of the LGBTQ+ community.

The Central Government, represented by Solicitor General Tushar Mehta, argued that legally speaking, marriage is a relationship between biological males and biological females. The Supreme Court, on their part, noted that there is no legal definition for a difference between men and women.

Niyati Rao

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