By our Legal Correspondent
New Delhi, Oct 18 (IVC) The five-judges Constitution Bench of the Supreme Court on Oct 17 here stressed the need for constituting a Committee to decide the rights and entitlements of queer couples.
The Bench consisted of Chief Justice, D Y Chandrachud , Justices S K kaul, P S Narasimha,S Ravindra Bhat and Hima Kohli said that same-sex marriages cannot legalize while considering the pleas for according legal validity for same-sex marriages and only the legislature can recognize or regulate queer marriage. The Bench also held that since there was no fundamental or unqualified right to marry, the courts cannot intervene.
However, the Bench failed to reach a consensus on providing even long abiding relationships between queer couples the status of a legally recognized “civil union”. This was despite all five judges on the Bench unanimously accepting that it was time to end discrimination against same-sex couples.
Chief Justice of India, who became a minority on the Bench with Justice Sanjay Kishan Kaul, declared that queer couple have a fundamental right to form relationships and the State was obligated to recognize and grant legal status to such unions, so that same-sex couples could avail the material benefits provided under the law.
On the other hand , Justices S R Bhat and Hima Kohli, in their opinion backed by a separate one by Justice P S Narasimha to form the majority judgment of the bench held that “ an entitlement to legal recognition of the right to union, or conferring legal status upon the parties to the relationship- can be only through enacted law”.
The Bench refused to tinker with the Special Marriage Act. Chief Justice said it was within the legislative domain to rid the 1954 Act of its “institutional limitations”. Justice Bhat found the petitioners’ plea to read various provisions of the Act in a gender-neutral manner, so as to enable same –sex marriage “unsustainable”.
In his minority opinion, the Chief Justice held that the right to form a union was a feature of the fundamental right to choose partners and lead a dignified , meaningful lifr. Equally cannot be denied to same-sex couples on the basis of their sexual orientation , he said, emphasizing that queer persons have a right to form abiding relationshipsChandrachud held that queerness was a natural phenomenon, neither urban nor elite, adding that the conception of marriage was neither universal nor static.
“It is insufficient if persons have the ability and freedom to form relationships unregulated by the State. For the full enjoyment of such relationships, it is necessary that the State accord recognition to such relationships” Chief Justice Chandrachud said.
