Same-sex marriage verdict: Parliament to decide if change in regime of special marriage act required, says SC

The Supreme Court is pronouncing its verdict on same-sex marriage in India. The Chief Justice of India (CJI) DY Chandrachud, while pronouncing the verdict, said that the Special Marriage Act cannot be held void and that it’s incorrect to say marriage is a static and unchanging institution.

“Whether a change in the regime of the Special Marriage Act is required is for the Parliament to decide. This Court must be careful to not enter into legislative domain,” he said.

He noted that the Special Marriage Act cannot be held void and that it’s incorrect to say marriage is a static and unchanging institution.

While Chief Justice of India (CJI) DY Chandrachudh and Justice SK Kaul ruled that same-sex couples have the right to adopt, the other three judges disagreed.

The CJI said that homosexuality or queerness is not an urban concept or restricted to the upper classes of society.

“The doctrine of separation of powers cannot stand in the way of the court issuing directions to protect fundamental rights. The court cannot make law but only can interpret and give it effect,” he said.

The Special Marriage Act cannot be held unconstitutional just because it doesn’t recognize same-sex marriages, Chandrachud said, adding that the apex court cannot compel Parliament or state assemblies to create a new institution of marriage.

Committee to be set up to protect queer rights

The five-judge bench has asked the Centre to form a committee with domain experts that will be responsible for protecting the rights of the LGBTQ community.

“The committee is to hold wide stakeholder consultations with the queer community: the community to see if such families can have ration cards can have insurance facilities and the medical practitioners have the obligation to consult family for terminal illness, rights from employment, gratuity etc to be looked into,” the bench said.

SC strikes down CARA regulation

The bench also struck down the regulations laid down by the Central Adoption Resource Authority (CARA) observing that it is wrong “to assume that only heterosexual couples can be good parents.”

“CARA regulation 5(3) discriminates between partners in atypical unions. It will disproportionately effect non-heterosexual couples and thus a unmarried heterosexual couple can adopt but not the same for the queer community,” the CJI said.

“The law cannot make an assumption about good and bad parenting and it perpetuates a stereotype that only heterosexuals can be good parents. Thus the regulation is held to be violative of the queer community,” the bench noted.

VIDEO | Chief Justice of India DY Chandrachud-led five-judge Supreme Court bench delivers verdict on a clutch of petitions seeking legal validation of same-sex marriage. (n/1)

(Source: Third Party) pic.twitter.com/KYZWhbrCCy

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The five-judge bench includes DY Chandrachud, Chief Justice of India, Justices Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli, and PS. Narasimha. They heard several petitions concerning the rights of the LGBTQIA+ community to marital equality.

On May 11, following the conclusion of the arguments from all of the solicitors, the order was reserved.

On April 18, the Constitution Bench started considering the case, and the hearing lasted for over ten days.

Several arguments ranging from the right to equality to the right to privacy were heard during the hearing.

Those opposing the move include the Centre which has argued against the argument and maintained that Parliament, not the court, should decide the matter.
The National Commission for the Protection of Child Rights (NCPCR) has informed the

Supreme Court that adoption is not a substitute for biological birth in heterosexual couple households because the entire legal system is framed with the welfare of the child as its primary concern.