On Tuesday, the Supreme Court of India declined to grant marriage equality rights to the LGBTQIA+ community in the country. The court stated that the authority to create laws in this regard rests with the parliament. The Supreme Court noted that a Committee would be formed by the Union to assess the rights and privileges that can be extended to queer couples. This decision came as a result of a series of petitions seeking legal recognition of same-sex marriage under the Constitution.
The Chief Justice of India, who leads the constitution bench, directed the Central government, state governments, and union territories to ensure that the LGBTQ+ community is protected from discrimination. He emphasized that queerness is a natural and long-standing phenomenon that is not limited to urban or privileged settings.
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Differing Views on LGBTQIA+ Rights and Legal Recognition of Unions
Justice Kaul deferred with the CJI on granting certain rights to queer couples. He said that “non-heterosexual and heterosexual unions should be viewed as two sides of the same coin” and that legal recognition of non-heterosexual unions is a step towards marriage equality. Justice Bhat, who announced the main part of his verdict, said that he agreed and disagreed with some of the CJI’s views.
The CJI said that it was up to Parliament to decide whether there was a need for a change in the Special Marriage Act’s regime. He said that “this court cannot make law. It can only interpret and apply it.” Justice Chandrachud said that the court had noted Solicitor General Tushar Mehta’s statement that the Centre would form a committee to determine the rights and entitlements of people in queer unions.
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He directed the Centre, states and UTs to take measures to raise awareness about queer rights and ensure that inter-sex children are not subjected to sex-change operations at an age when they cannot fully understand the consequences. The CJI ordered the police to conduct a preliminary investigation before filing an FIR against a queer couple over their relationship.
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Legal Recognition and Equality for Queer Relationships in India
He said that homosexuality or queerness is not an urban or upper-class concept. Justice Chandrachud said that imagining queer as existing only in urban areas would be like erasing them and that queerness can transcend one’s caste or class. He said that it would be wrong to say that marriage is a “static and immutable institution”.
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Justice Chandrachud said that the right to choose a life partner is at the core of the right to life and liberty under Article 21 of the Constitution.
The Chief Justice of India (CJI) emphasized that the right to form a partnership encompasses the freedom to select a life partner and have that relationship officially recognized. The CJI expressed that the absence of acknowledgment of such relationships would amount to discrimination. He further stated that “every individual, including those who identify as LGBTQ+, possesses the right to assess the ethical aspects of their own lives.” The CJI underscored that the court has recognized that equality demands protection against discrimination for queer individuals.
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Ending Discrimination and Recognizing the Parenting Rights of LGBTQIA+ Couples
He said that the law cannot presume that only heterosexual couples can be good parents as it would amount to discrimination against queer couples. The bench reserved its verdict on the petitions after a 10-day long hearing on May 11.
LGBTQIA++ stands for lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual and ally persons.
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On May 3, the Centre had told the court that it would set up a committee headed by the cabinet secretary to examine the administrative steps that could be taken to address “genuine humane concerns” of same-sex couples without going into the issue of legalising their marriage.
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