NEW DELHI – A five-judge constitution bench of the Supreme Court unanimously rejected the demand for legal recognition of same-sex marriage. The bench headed by Chief Justice DY Chandrachud ruled that Parliament should decide whether same-sex relationships should be recognized as marriages.
The court also stated that marriage is not a constitutional right. Meanwhile, 3 other judges S. Ravindra Bhatt, Hima Kohli and PS Narasimha disagreed with the Chief Justice and Justice Sanjay Kishan Cole’s stand that same-sex couples can adopt children. 4 members of the five-judge bench wrote separate judgments. Justice Hima also signed the judgment written by Justice Bhatt. Justice Narasimha fully agreed with their stand.
The court considered 21 petitions seeking the legality of marriages outside the traditional marriage relationship (male and female), including same-sex marriages. Same-sex couples are not barred from living together. However, to be registered as a marriage, the Special Marriage Act must be amended. This is not within the jurisdiction of the court. The court also stated that LGBTQIA plus people, including transgenders, are not barred from marrying people from other communities.
There should be no discrimination on the grounds of same-sex relationships. Before registering a case in complaints related to same-sex relationships, the police should conduct a preliminary investigation. The court also directed the central and state governments to create awareness in the society to ensure that same-sex couples do not face discrimination.
The Chief Justice criticized the central position that same-sex interest was confined to the cities and the elite. He pointed out that same-sex relationships are natural and age-old.
A central committee is needed to study the rights
The court directed the government to form a high-level committee under the chairmanship of the Union Cabinet Secretary to examine the rights and benefits of same-sex relationships without recognizing them as marriage. Solicitor General Tushar Mehta had stated during the hearing that the committee would be formed. The committee should consider matters including PF, ESI, pension, bank account opening, enrollment in school as parents etc.
Criticism of the central position that the petition should not be considered
New Delhi ∙ Chief Justice DY Chandrachud in the judgment criticized that the central position that only the decision of the legislatures is democratic questions the validity of the judiciary itself. The central position was that the court should not consider the same-sex marriage petition
Democracy is narrowly defined by those who say that the will of the people is subverted by judicial review. The Constitution considers democracy not only through elections.
Courts strengthen democracy, not destroy it. Courts have the right to examine the actions of the legislatures and the government on the basis of constitutional values. Those who do not get their democratic rights through the political process go to court. The Chief Justice pointed out that the court is participating in the democratic process through its decision.
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