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Polity & Governance
Mahesh

23/10/23 06:53 AM IST

Supreme Court not allow same-sex marriage

In News
  • Recently, five-judge Constitution Bench of the Supreme Court, declined to legalise same-sex marriage, leaving it to Parliament to legislate on the subject.
About Petition
  • The petitioners had sought a ruling by which the Special Marriage Act (SMA), 1954, which provides for a civil marriage for couples who cannot marry under their personal law, should be interpreted as gender-neutral, thus allowing same-sex couples to marry under it.
  • The SMA, they argued violated Articles 14, 15, 19, 21 and 25 by not allowing marriage between same-sex, gender non-conforming, LBGTQIA+ couples, and sought the words “husband” and “wife” as well as any other gender-specific term to be substituted by the word “party” or “spouse”.
  • They also sought joint adoption rights, nominee rights with respect to healthcare decisions, “preventative, remedial, protective and punitive measures” by all State governments to guarantee their safety and security, and directions to the Union and State governments, district and police authorities to provide protection to adult, consenting LGBTQIA+ couples from their families.
Court Judgement
  • The majority opinion, of Justices Ravindra Bhat, Hima Kohli, and backed by a separate concurring judgment by P.S. Narasimha, said that “an entitlement to legal recognition of the right to union — akin to marriage or civil union, or conferring legal status upon the parties to the relationship — can be only through enacted law.”
  • The minority opinion, of Chief Justice of India D.Y. Chandrachud and Justice Sanjay Kishan Kaul, said the LGBTQIA+ community had a fundamental right to form relationships and that the state was obligated to recognise and grant legal status to such unions, so that same-sex couples could avail the material benefits provided under the law.
  • The Court has said the state must take “remedial action” because if it regulates marriage only for heterosexual couples, it “adversely impacts” the LGBTQIA+ community, resulting in their exclusion, and “denial of entitlements/benefits,” and that “this injustice and inequity results in discrimination.”
  • It has set down a set of guidelines, from setting up a committee chaired by the Cabinet Secretary for the purpose of defining the scope of entitlements of queer couples who are in unions, to directing police stations to not harass the community.
  • The Court said the state may choose from a number of policy outcomes: they may make all marriage and family related laws gender-neutral, or they may create a separate SMA-like statute in gender-neutral terms.
  • They may pass an Act creating civil unions, or a domestic partnership legislation, among many other alternatives. “Another consequence may be that rather than the Union Government, the State legislatures take action and enact law or frameworks, in the absence of a central law.
Way Forward
  • Even within the diverse LGBTQIA+ community, with their millions of identities, we need to build better alliances, so that caste, class and other issues do not come in the way.
  • It's a long road to marriage equality and other rights, and the queer movement should battle against any attempt to recognise one identity, say transgender persons, and not another.
  • The Supreme Court said it could not issue a mandamus to Parliament; it determined the scope and effect of certain fundamental rights, and then ruled that the Constitution does not recognise marriage as a fundamental right.
  • Throughout the hearings, the government held that it was against same-sex marriage. It had also pointed out that judicial intervention would cause “complete havoc with the delicate balance of personal laws.”
  • Queer rights activists, while relieved about the recognitions granted in the minority judgment, were disheartened with the final verdict.
Source- The Hindu

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