On adoption of children by queer couples, CJI said it cannot be assumed that unmarried couples are not serious about their relationship.
October 17 (Asian News International): New Delhi (India): On Tuesday, the Supreme Court issued a ruling in which it declined to acknowledge the right of same-sex couples to join marriages or civil unions and instead deferred the matter to the legislature for further consideration.
Five judges on a constitutional bench all agreed that they could not change the Special Marriage Act (SMA) or read it in a way that would include non-heterosexual couples.
Even after the apex court of India declared that queer couples have a right to cohabit without any threat of violence, coercion, or interference, a bench consisting of the Chief Justice of India, DY Chandrachud, and Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha refused to tweak the provisions of the Special Marriage Act. Other members of the bench included Justice PS Narasimha.
In addition to Justices Kaul, Bhat, and Narasimha, the Chief Justice of India wrote a total of four distinct rulings. Justices Bhat, Narasimha, and Kohli have all reached the same conclusion independently, whereas the CJI and Justice Kaul share the same viewpoint.
The three judges who participated in the majority opinion reached the conclusion that the ability to jointly adopt a child cannot be extended to non-heterosexual couples. On the other hand, the CJI and Justice Kaul both said that these couples do have the ability to adopt a child together.
The minority decision said that Article 15 of the Constitution is broken because Regulation 5(3) of the Adoption Regulations, as defined by the Central Adoption Resource Authority (CARA), is unfair to LGBT people.
While a minority of the judges argued for civil unions to be legally recognised for non-heterosexual couples, the majority of the judges came to the conclusion that there is no such thing as a right to civil unions that can be legally enforced.
There was unanimous agreement among the five judges that marriage is not a basic right.
The justices in the minority opinion said that the Centre, States, and Union Territories should not prohibit lesbian, gay, bisexual, transgender, and queer persons from joining into partnerships in order to take advantage of the advantages offered by the state. The ruling reached by the majority said that the right to civil unions can only be granted by laws that have been passed by the government, and the courts have no authority to order the establishment of such a regulatory framework.
On the other hand, they were all in agreement that a high-powered committee should be established, as requested by the Centre in May, to investigate the issues that gay couples face and to consider several potential solutions.
The three justices said that lesbian, gay, bisexual, and transgender people do not violate any laws by expressing their love for one another, that they have the freedom to select their own partners, and that they need to be safeguarded so that they may enjoy such rights.
“There is no such thing as an unrestricted right to marry, unless and until such time as it is recognised by the law.” The only way for a civil union to be granted legal status is for a statute to explicitly grant it. These results will not prevent LGBT people from exercising their freedom to engage in partnerships with one another. The argument that the Special Marriage Act should be challenged on the grounds that it underclassifies some couples cannot be sustained. People who identify as transgender and are in gay or lesbian partnerships are allowed to marry. According to the ruling that Justice Bhat wrote, “the state shall ensure that queer persons are not harassed.”
The highest court in the land has given its decision on a group of petitions asking for the Special Marriage Act of 1954 to be amended to allow members of the LGBTQIA+ community to have the legal right to marry.
In March and April, the Constitution Bench held a marathon hearing that spanned 10 days of arguments from both parties. On May 11, the court said that it would reserve its judgement on the petitions.
There were same-sex couples, rights activists, social professionals, and organisations among the petitioners who presented their cases before the Supreme Court.
The Chief Justice of India said, while announcing the ruling, that homosexuality or queerness is not a notion that is exclusive to cities or that is confined to the higher sections of society.
“A person who can claim to be queer is not necessarily a man who speaks English and has a white collar job, but it could just as easily be a woman who lives in a village and works in an agricultural job.” To picture gay people living in urban places is the same as saying they do not exist, and to do so is to conflate urban and elite settings. There is no correlation between one’s caste, class, or socioeconomic level and one’s queerness, according to CJI.
Concerning the adoption of children by homosexual couples, the CJI said that it is not reasonable to conclude that unmarried couples are not serious about their relationship if they want to adopt children.
There is no evidence in the historical record to support the claim that a child can only be provided with a stable environment by a married heterosexual couple. According to the CJI, “as a result, the regulation (of CARA) is held to be discriminatory towards the queer community.”
Therefore, the Chief Justice of India issued some directives, which stated that no person should be forced to undergo any kind of hormonal therapy, that there should be no harassment of the queer community by summoning them to police stations solely to inquire about their sexual identity, that the police should not force queer people to return to their biological families, and that the police should conduct a preliminary investigation before filing a FIR against a queer couple over their relationship.
He went on to say that the government of the Union as well as the state must take measures to guarantee that the gay community is not subjected to any kind of discrimination and that the LGBT community is not denied access to any products or services because of their sexual orientation.
The CJI requested that the public be educated on LGBT rights, that the government establish a helpline for the queer community, that the government provide safe places for queer couples, and that the government guarantee that intersex youngsters are not coerced into undergoing procedures.
He went on to say that the ability to enter into a union cannot be denied on the basis of a person’s sexual orientation, that transgender people who are in heterosexual partnerships have the right to marry under the current laws, including personal laws, and that unmarried couples, including gay couples, may jointly adopt a child.
However, Justice Bhat, in a dissenting judgement from the CJI, said that the Court cannot impose any obligations on the state since there is no constitutional right to marry and no legal recognition of partnerships between non-heterosexual couples. (ANI)
