The minority decision of a Supreme Court Constitution Bench on Tuesday recognized the right of same-sex couples to enter into a civil union..Chief Justice of India (CJI) DY Chandrachud and Justice Sanjay Kishan Kaul disagreed with the majority decision to not recognize the right of same-sex couples to enter into marriages or have civil unions. “The right to enter into a union cannot be restricted based on sexual orientation. Such a restriction will be violative of Article 15. Thus, this freedom is available to all persons regardless of gender identity or sexual orientation,” they said.The CJI and Justice Kaul, however, also ruled that it would be within the domain of Parliament to give legal recognition to same-sex marriages..The judges said that the State, by not endorsing a form of relationship, was encouraging certain preferences over others.They opined that the failure of the State to recognize the entitlements that flow from a legalized marriage would result in a “disparate impact on queer couples who cannot marry under the current legal legal regime”.Holding the restriction against the union of queer couples on the basis of their sexual orientation to be violative of Article 15 of the Constitution, the judges said:“The word 'sex' must be read to include sexual orientation, not only because of the causal relationship between homophobia and sexism, but also because the word 'sex' is used as a marker of identity, which cannot be read independent of the social and historical context.".CJI Chandrachud and Justice Kaul further said that the decision in Navtej Singh Johar v. Union of India and the nine-judge Constitution Bench decision in Justice KS Puttaswamy (Retd) & Anr v. Union of India & Ors recognizes the right of couples to exercise the choice to enter into a union.They added that transgender persons in heterosexual relationships have the right to marry under existing law including personal laws which regulate marriage.The judges also said that the Central and state governments and the administrations of union territories shall not discriminate against the freedom of queer persons to enter into union with benefits under law..Watch the pronouncement of the judgment here:.The judges also delved into other aspects of law and held as under:.JurisdictionCJI Chandrachud said that the Court is vested with the authority to hear the case and under Article 32, the top court has the power to issue directions, orders or writs for enforcement of rights under Part III of the Constitution. "The doctrine of separation of powers cannot...stand in the way of this court issuing directions, orders or writ for the enforcement of fundamental rights".However, the judges also said that it lies within the domain of Parliament and the state legislatures to enact laws recognizing and regulating queer marriage. .QueernessQueerness is a natural phenomenon known to India since ancient times and it is not just urban or elite, observed the CJI Chandrachud.Justice Chandrachud also said that the Constitution does not expressly recognise a fundamental right to marry, but several facets of marital relationships are reflections of constitutional values like the right to human dignity and the right to life and personal liberty."People may be queer regardless of whether they are from villages or cities...It is not just an English-speaking man with a white collar job who can claim to be queer, but equally a woman working in an agricultural job in a village.".Special Marriage ActThe Court cannot either strike down the constitutional validity of the Special Marriage Act or read words into it because of its institutional limitation, the judges said.CJI Chandrachud also said that Section 4 of the Special Marriage Act cannot be struck down only because it excludes marriage between same-sex couples."If the SMA were held void for excluding same sex couples, it would take India back to the pre independence era, where two persons of different religions and caste were unable to celebrate love in the form of marriage.".AdoptionUnmarried couples, including queer couples, can jointly adopt children, the judges said as they held Regulation 5(3) of the Central Adoption Resource Authority (CARA)'s Adoption Regulations as ultra vires the Juvenile Justice Act and Articles 14 and 15 of the Constitution.The judges said that the authorities did not place any data on record to support the claim that only heterosexual couples can provide stability to children.CJI Chandrachud also said that the law cannot make an assumption about good and bad parenting based on the sexuality of individuals.The judges said that Regulation 53 discriminate against the queer community..WATCH| Highlights of the minority and majority verdict in the marriage equality case:.[Read Judgment]
The minority decision of a Supreme Court Constitution Bench on Tuesday recognized the right of same-sex couples to enter into a civil union..Chief Justice of India (CJI) DY Chandrachud and Justice Sanjay Kishan Kaul disagreed with the majority decision to not recognize the right of same-sex couples to enter into marriages or have civil unions. “The right to enter into a union cannot be restricted based on sexual orientation. Such a restriction will be violative of Article 15. Thus, this freedom is available to all persons regardless of gender identity or sexual orientation,” they said.The CJI and Justice Kaul, however, also ruled that it would be within the domain of Parliament to give legal recognition to same-sex marriages..The judges said that the State, by not endorsing a form of relationship, was encouraging certain preferences over others.They opined that the failure of the State to recognize the entitlements that flow from a legalized marriage would result in a “disparate impact on queer couples who cannot marry under the current legal legal regime”.Holding the restriction against the union of queer couples on the basis of their sexual orientation to be violative of Article 15 of the Constitution, the judges said:“The word 'sex' must be read to include sexual orientation, not only because of the causal relationship between homophobia and sexism, but also because the word 'sex' is used as a marker of identity, which cannot be read independent of the social and historical context.".CJI Chandrachud and Justice Kaul further said that the decision in Navtej Singh Johar v. Union of India and the nine-judge Constitution Bench decision in Justice KS Puttaswamy (Retd) & Anr v. Union of India & Ors recognizes the right of couples to exercise the choice to enter into a union.They added that transgender persons in heterosexual relationships have the right to marry under existing law including personal laws which regulate marriage.The judges also said that the Central and state governments and the administrations of union territories shall not discriminate against the freedom of queer persons to enter into union with benefits under law..Watch the pronouncement of the judgment here:.The judges also delved into other aspects of law and held as under:.JurisdictionCJI Chandrachud said that the Court is vested with the authority to hear the case and under Article 32, the top court has the power to issue directions, orders or writs for enforcement of rights under Part III of the Constitution. "The doctrine of separation of powers cannot...stand in the way of this court issuing directions, orders or writ for the enforcement of fundamental rights".However, the judges also said that it lies within the domain of Parliament and the state legislatures to enact laws recognizing and regulating queer marriage. .QueernessQueerness is a natural phenomenon known to India since ancient times and it is not just urban or elite, observed the CJI Chandrachud.Justice Chandrachud also said that the Constitution does not expressly recognise a fundamental right to marry, but several facets of marital relationships are reflections of constitutional values like the right to human dignity and the right to life and personal liberty."People may be queer regardless of whether they are from villages or cities...It is not just an English-speaking man with a white collar job who can claim to be queer, but equally a woman working in an agricultural job in a village.".Special Marriage ActThe Court cannot either strike down the constitutional validity of the Special Marriage Act or read words into it because of its institutional limitation, the judges said.CJI Chandrachud also said that Section 4 of the Special Marriage Act cannot be struck down only because it excludes marriage between same-sex couples."If the SMA were held void for excluding same sex couples, it would take India back to the pre independence era, where two persons of different religions and caste were unable to celebrate love in the form of marriage.".AdoptionUnmarried couples, including queer couples, can jointly adopt children, the judges said as they held Regulation 5(3) of the Central Adoption Resource Authority (CARA)'s Adoption Regulations as ultra vires the Juvenile Justice Act and Articles 14 and 15 of the Constitution.The judges said that the authorities did not place any data on record to support the claim that only heterosexual couples can provide stability to children.CJI Chandrachud also said that the law cannot make an assumption about good and bad parenting based on the sexuality of individuals.The judges said that Regulation 53 discriminate against the queer community..WATCH| Highlights of the minority and majority verdict in the marriage equality case:.[Read Judgment]
