D-Day finally arrived on October 17, 2023, Tuesday when the Supreme Court of India gave its verdict on the recognition of the Same-Sex Marriage. Same-Sex marriage verdict of the Supreme Court was among the most awaited decisions of the nation especially among the LGBTQ+ community as it would have given them equal rights as compared to other people. However, the Supreme Court Same-Sex marriage verdict may disappoint the LGBTQ+ community as the Chief Justice of India (CJI) Justice DY Chandrachud has opined that left the issue on Parliament as the court cannot strike down the provisions of the Special Marriage Act or read words differently.
Giving his opinion on Same-Sex marriage Supreme Court's decision, CJI Chandrachud said, "There are 4 judgments. There is judgment by me, Justice Kaul, Justice Bhat and Justice Narasimha. There is a degree of agreement and a degree of disagreement on how far we have to go."
Pointing out the fact that the court cannot make a law, CJI Chandrachud said, "This court cannot make law, it can interpret the law. Queerness is not urban elite. Homosexuality or queerness is not an urban concept or restricted to the upper classes of the society. It is not an English speaking man with a white collar man who can claim to be queer but equally a woman working in an agricultural job in a village. To image that queer people exist only in urban and elite spaces is to erase them. All those who live in cities can't be termed as elite."
"Incorrect to state that marriage is a static and unchanging institution. Reforms in marriage have been brought about by Acts of the legislature," added CJI Chandrachud.
"If in the present batch of petitions, this Court holds that Sec 4 of Special Marriage Act is unconstitutional because of being under-inclusive, it has to either strike it down or read it down..If Special Marriage Act is struck down, it will take the country to pre-Indpendence era. If the Court takes the second approach and reads words into the SMA, it will be taking up the role of legislature, " said CJI Chandrachud adding, "The Court is not equipped to undertake such an exercise of reading meaning into the statute."
"Whether a change in the regime of the Special Marriage Act is for the Parliament to decide. This Court must be careful to not enter into legislative domain," CJI Chandrachud said.
'Committee to examine the rights of LGBTQ+ to be set up by Centre'
During the hearing, CJI Chandrachud further said, "The right to enter into Union includes the right to choose one's partner and the right to recognition of that union. A failure to recognise such associations will result in discrimination against queer couples. The Solicitor General said that the Union will set out a committee to examine the rights which can be conferred on such couples."
Same-Sex Marriage Supreme Court
For those who are unaware, the case was reserved on May 11 for judgment. The Constitution Bench was headed by Chief Justice of India D.Y. Chandrachud and the other four judges are Justices Sanjay Kishan Kaul, Justice S Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha. Justice Bhat is scheduled to retire on October 20.
All judges barring Justice Kohli gave separate judgments. Supreme Court Same-Sex marriage verdict was eagerly awaited as the government had sternly objected to the idea of a judicial declaration giving legal status to same-sex relationships, saying that would result in confusion and encroach into the legislative domain. In fact, the Central government had argued that the court ought to leave the issue to the Parliament.