The Supreme Court has refused to give legal recognition to same sex or gay marriage. The five-judge bench of the Constitution Bench has given the verdict by 3-2.
The bench said that the law does not recognize the right to same-sex marriage; It is up to the Parliament to make a law for this.
Chief Justice DY Chandrachud, while reading the verdict, said that homosexuality is not an urban concept and is not limited to the upper sections of the society. He said the court cannot make law, it can only interpret it and give it effect.
CJI Chandrachud says that it is wrong to say that marriage is a stable and immutable institution.
He said that if the Special Marriage Act is abolished it would take the country back to the pre-independence era. It is for Parliament to decide whether there is a need to change the provisions of the Special Marriage Act. The CJI said, this court should be careful not to enter the legislative area.
The Chief Justice said that it is for Parliament to decide whether there is a need to change the provisions of the Special Marriage Act or not. The ability to choose one’s life partner is linked to the right to life and liberty under Article 21.
He said that the right to relationships includes the right to choose a life partner, its recognition; Not recognizing this type of relationship is discrimination. Everyone, including gay people, has the right to assess the moral quality of their lives.
The Chief Justice said that this court has recognized that equality demands not to discriminate against homosexual persons. The law cannot assume that only opposite sex couples can prove to be good parents as this would amount to discrimination against homosexual couples. The Centre, States and Union Territories should ensure that the homosexual community is not discriminated against.
Justice S.K. Kaul said that while legalizing same-sex relationships is a step towards marriage equality, same-sex and opposite-sex relationships should be seen as two sides of the same coin.
Justice Ravindra Bhatt said that he agreed with some of the views of Chief Justice Chandrachud and disagreed with some. While homosexual persons have the right to choose their partner, it cannot be binding on the country to recognize the rights associated with such relationships.
Disagreed with the Chief Justice on the rights of same-sex couples and said he had expressed some concerns.
Earlier during the hearing, the Center had told the Supreme Court that any constitutional declaration made by it on petitions seeking legal recognition of gay marriage could not be the right course of action as the court would be in a position to anticipate its consequences, hypothesize will not be able to do, understand and deal with them.
Earlier in the month of May, the Constitution Bench of five judges headed by Chief Justice DY Chandrachud had reserved the decision after hearing for about 10 days. The bench of judges hearing these petitions included Chief Justice DY Chandrachud and Justice SK Kaul, Justice SR Bhatt, Justice Hima Kohli and Justice PS Narasimha.
The Center had also told the court that it had received responses from seven states on the issue of same-sex marriage and the governments of Rajasthan, Andhra Pradesh and Assam had opposed the petitioners’ plea to legalize same-sex marriage. The Supreme Court started hearing on this case on April 18.
Regarding this matter, the Central Government says that the Supreme Court should leave it to the Parliament. During the hearing, Solicitor General Tushar Mehta, who appeared before the court on behalf of the government, said that a biological father and mother can give birth to a child, this is the natural law, it should not be tampered with. Even if gay marriage is approved, who will be the wife in a man-man marriage?
The central government told the Supreme Court that the court can neither rewrite the legal provisions nor change the basic structure of any law as was conceived at the time of its formulation.
The Center requested the court to consider leaving the questions raised in the petitions regarding legalizing same-sex marriages to Parliament. (input-agency)