A Constitution Bench led by Chief Justice of India
(CJI) DY Chandrachud and comprising Justices Sanjay Kishan Kaul, S Ravindra
Bhat, Hima Kohli and PS Narasimha has been pronouncing the most-awaited
verdict on same gender marriage.
The Bench on May 11, had reserved its verdict on the
pleas after a marathon hearing of 10 days.
A batch of petitions before the Supreme Court sought
the recognition of same-sex marriages under the Special Marriage Act 1954,
arguing that the right to marry a person of one’s choice should extend to
LGBTQIA+ citizens as well. The government had opposed the petitions.
Reading out the judgment on Same-Sex Marriage, CJI DY
Chandrachud said:
There is a degree of agreement and degree of
disagreement.
Courts cannot make law but can interpret and give
effect to it. Then the subject of queerness is not urban or elite.
In the limited exploration of the literature on the
subject, it makes it clear homosexuality is not a novel subject. People may be
queer regardless of whether they are from villages or cities. Not only an
English-speaking man can lay claim to being queer. It is also a woman working
at a farm in a rural area.
The court is not taking the job of historians. The
institution of marriage has changed, which characterises the institution from
sati and widow remarriage to interfaith marriage.
The discussion demonstrates that the institution of
marriage is not static.
Marriage has metamorphised and has changed and it is
an irrefutable truth and many such changes have come from the Parliament. Many
sections remain opposed to these changes, but still, it has changed. Thus, it
is not a static or unchanging institution.
To create marriage for same-sex couples as a
fundamental cannot be accepted. There is a marriage between expressive and
component material. Marriage is not fundamental in that sense and it has gained
that nature due to the regulations.
If we hold Section 4 of the Special Marriage Act as
unconstitutional, then the purpose of the progressive legislation will be lost.
For the full enjoyment of such relationships, such
unions need recognition and there cannot be a denial of basic goods and
services. The State can indirectly infringe upon freedom if it does not
recognise the same.
There may be reasonable restrictions on the right but
the right to intimate association needs to be unrestricted. The tangible
benefits of marriage are traceable to the contents of the law.
Freedom to choose a partner and to enter into
relationships and an intimate relationship will be otiose if the State does not
recognise the same and not have a bouquet of benefits, otherwise there will be
systemic discrimination.
This court has recognised that a queer person is not
discriminated upon and their union cannot be discriminated based on sexual
orientation.
Material and services flowing to heterosexual couples
and denied to them will be a violation of their fundamental rights. The word
sex cannot be read without social and historical context.
Restriction on their union based on sexual orientation
would be a violation of Article 15 of the Constitution.
If a transgender person wishes to marry a heterosexual
person, such marriage will be recognised as one would be a man and another
would be a woman, transgender man has the right to marry a woman, a transgender
woman has the right to marry a man and a transgender woman and a transgender
man can also marry and if not allowed it will violate the transgender act.
Married couples can be differentiated from unmarried
couples. Respondents have not placed on record any data to show that only
married couples can grant stability.
This is noted that separation from married couples is
restrictive as it is regulated by law, but for unmarried couples, that is not
so. The stability of the household depends on several factors, including,
creating a healthy work-life balance.
There is no single definition of a stable household
and the pluralistic form of our Constitution gives a right to different forms
of associations.
NE Watch Desk
