NEW DELHI, Oct.17, 2023 (TBINN)
Court can’t make law but only interpret it and it is for Parliament to change the Special Marriage Act, Chief Justice of India (C.J.I.) D.Y. Chandrachud said today while pronouncing his verdict on 21 pleas seeking legal validation for same-sex marriages.
At the outset, Justice Chandrachud said there are four judgments — by himself, Justices Sanjay Kishan Kaul, S Ravindra Bhat and P.S. Narasimha — in the matter. Justice Hima Kohli is also a part of the five-judge bench.
Directing the Centre, states and Union Territories (U.T.s) to ensure that the queer community is not discriminated against, the C.J.I., who is heading the Constitution Bench, said queer is a natural phenomenon known for ages and is neither urban nor elitist.
Justice Kaul said he agrees with the C.J.I. on grant of certain rights to queer couples.
“Non-heterosexual and heterosexual unions must be seen as both sides of same coin,” he said, adding that legal recognition of non-heterosexual unions is step towards marriage equality.
Justice Bhat, who read out the operative portion of his verdict, said he agrees and differs with views of the C.J.I. on certain points.
Delivering his verdict on the critical issue, the C.J.I. said it is for Parliament to decide whether there is need for a change in the regime of the Special Marriage Act. This court can’t make law. It can only interpret it and give effect to it, he underlined.
Justice Chandrachud said the court has recorded Solicitor-General Tushar Mehta’s statement that the Centre will form a committee to decide the rights and entitlements of persons in queer unions.
While reading out the operative portion of his verdict, he directed the Centre, states and U.T.s to take steps to sensitise public about queer rights and ensure that inter-sex children are not allowed sex-change operations at an age they cannot fully comprehend consequence.
Chief Justice of India directed the police to conduct preliminary enquiry before registering an F.I.R. against queer couple over their relationship. He said homosexuality or queerness is not an urban concept or restricted to the upper class.
To imagine queer as existing only in urban spaces would be like erasing them and queerness can be regardless of one’s caste or class, Justice Chandrachud said and added that it would be incorrect to state that marriage is a static and unchanging institution.
Justice Chandrachud said the ability to choose a life partner goes to the roots of the right to life and liberty under Article 21 of the Constitution.