Supreme Court refuses to recognise same-sex marriages, leaves it to Parliament

A five-judge Constitution bench of the Supreme Court headed by Chief Justice of India DY Chandrachud on Tuesday refused to grant legal recognition to same-sex marriages.DY Chandrachud said the court can’t make law but only interpret it and it is for Parliament to change the Special Marriage Act. The bench was pronouncing its verdict on 21 pleas seeking legal validation for same-sex marriages.

He asked the Centre, states and Union Territories (UTs) to ensure the queer community is not discriminated against. The Chief Justice said queer is a natural phenomenon known for ages and is neither urban nor elitist.”Courts cannot make law but can interpret and give effect to it. The subject of queerness is not urban or elite. In the limited exploration of the literature on the subject, it makes it clear homosexuality is not a novel subject,” the CJI said. “People may be queer regardless of whether they are from villages or cities. Not only an English-speaking man can lay claim to being queer. It is also a woman working at a farm in a rural area,” he added.

The CJI, while pronouncing his verdict on the critical issue, said it is for Parliament to decide whether there is need for a change in the regime of the Special Marriage Act.Justice Chandrachud said the court has recorded Solicitor General Tushar Mehta’s statement that the Centre will form a committee to decide the rights and entitlements of persons in queer unions.He also directed the police to conduct preliminary enquiry before registering an FIR against a queer couple over their relationship.He also said it would be incorrect to state that marriage is a “static and unchanging institution”. “Marriage has metamorphised and has changed and it is an irrefutable truth and many such changes have come from the parliament. Many sections remain opposed to these changes, but still, it has changed. Thus, it is not a static or unchanging institution,” he said.

On May 11, the bench had reserved its verdict on the pleas after a marathon hearing of 10 days.

On May 3, the Centre had told the court it will constitute a committee headed by the cabinet secretary to examine the administrative steps that could be taken for addressing “genuine humane concerns” of same-sex couples without going into the issue of legalising their marriage.