Same-Sex Marriage: On the surface, the Supreme Court‘s decision to forbid same-sex unions and to deny queer couples the ability to adopt may seem depressing, but if you read between the lines, there is much to celebrate. The case’s petitioners have also taken note of the judges’ strong arguments in support of the queer community.
Understanding the Court’s Perspective
The five-judge bench’s refusal to recognise same-sex unions is not motivated by a fundamental disagreement with marriage equality, but rather by legal nuances and issues with judicial legislation. In response to the center’s argument during the case hearing, all of the judges agreed that queer couples are neither urban nor elite.
Advocates and Petitioners Reflect on the Verdict and the Way Forward
Geeta Luthra, a prominent advocate and the attorney for numerous petitioners in the case, responded to the decision by saying, “Even if the right to marriage has not been given, CJI has said that the same bundle of rights which every married couple has should be available to same-sex couples.” One of the petitioners and LGBTQIA+ rights advocate Harish Iyer observed the remarks in behalf of the homosexual community. “Though at the end, the verdict was not in our favour but, so many observations made were in our favour. They have also put the responsibility on the central government. The Solicitor General said so many things against us, so it is important for us to go to our elected government, MPs and MLAs and tell them we are as different as two people. War is underway… it might take sometime but we will get societal equality,” ANI quoted him as saying.
Chief Justice Chandrachud on Individual Rights
The right of an individual to form a relationship cannot be curtailed on the basis of sexual orientation, said Chief Justice of India DY Chandrachud. However, the Chief Justice emphasised that the court must exercise caution to avoid interfering with legislative matters and that it is up to Parliament to decide whether changes to the Special Marriage Act are necessary.
Petitioners’ Challenge to Marriage Laws and Court’s Scope of Examination
The petitioners argued that some portions of the Hindu Marriage Act, Foreign Marriage Act, Special Marriage Act, and other marriage regulations violate the Constitution since they forbid same-sex couples from getting married. They had asked the court to interpret these clauses liberally to cover same-sex unions. The court had previously stated that it would only examine the Special Marriage Act and would not examine personal laws.
Divergent Views on Same-Sex Adoption and Key Directives from Chief Justice
The majority of judges on the bench disagreed with the Chief Justice’s position on the ability of same-sex couples to adopt children. The assumption that only heterosexual couples can make decent parents cannot be made by law. He questioned the conventional wisdom that prevents LGBT couples from adopting children, saying that doing so would amount to discrimination. The Chief Justice also outlined a number of directives for the federal and state governments, requesting that they, among other things, ensure that gay couples are not subjected to discrimination and raise awareness of LGBT rights.
Judges’ Perspectives on Same-Sex Unions and Historical Injustice
The Chief Justice’s statement that heterosexual and homosexual unions “must be seen as both sides of the same coin” was echoed by Justice SK Kaul. Additionally, he stated that this is a chance to “remedy historical injustice” and recognise such partnerships. Justice S. Ravindra Bhat concurred with Chief Justice Chandrachud that “queerness is neither urban nor elitist” while reading the majority opinion that disagreed with him and Justice Kaul on the issue of adoption. He did note that it would be challenging to establish a civil union right through court decree.
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