Same Sex Marriage Verdict : Supreme Court leaves issue for Parliament to decide

The Supreme Court on Tuesday delivered its much-anticipated judgement on pleas seeking legal validation for same-sex marriage. The top court’s five-judge constitution bench began pronouncing verdict on a batch of petitions seeking the right to marriage for LGBTQIA+ couples in India. CJI DY Chandrachud said queerness can be regardless of one's caste or class or socio-economic status. This court can't make a law. It can only interpret it and give effect to it, he added."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 the legislative domain," he said.

"If the Special Marriage Act is struck down, it will take the country to Pre-independence era. If the Court takes the second approach and reads words into the SMA, it will be taking up the role of legislature. The Court is not equipped to undertake such an exercise of reading meaning into the statute," the CJI said.The CJI said the CARA circular not giving adoption rights to queer couples is violative of Article 15 of the Constitution.Withdrawal of the State from the domestic space leaves the vulnerable party unprotected, he added saying thus all intimate activities within private space cannot be said to be beyond the State's scrutiny."The doctrine of separation of powers means that each of the three organs of the State perform distinct functions. No branch can function any others' function. The Union of India suggested that this court would violate the doctrine of separation of powers if it determines the list. However, the doctrine of separation of powers does not bar the power of judicial review. The Constitution demands that this court protect the fundamental rights of citizens. The doctrine of separation of powers does not come in the way of this court issuing directions for the protection of fundamental rights," CJI Chandrachud said.The right to enter into union includes the right to choose one's partner and the right to recognition of that union, said the CJI. 

A failure to recognize such associations will result in discrimination against queer couples, he added.The Solicitor General said that the Union will set out a committee to examine the rights which can be conferred on such couples. For the full enjoyment of such relationships, such unions need recognition and there cannot be denial of basic goods and services. The state can indirectly infringe upon freedom if it does not recognize the same. Right to enter into a union is also grounded in Article 19(1)(e)," he elaborated. Choosing a life partner is an integral part of choosing one's course of life, the CJI said."Some may regard this as the most important decision of their life. This right goes to the root of the right to life and liberty under Article 21," he added.Earlier on May 11, a five-judge constitution bench headed by CJI DY Chandrachud reserved its verdict on the pleas after a marathon hearing of 10 days.The other members of the bench include Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha.