The Apex Court on 27 April 2023 conveyed that bestowing legal commendation to same-sex unions comes down to the realm of the Parliament.
Yet the Court’s pursuit in listening to the same-sex marriage lawsuit is to guarantee that standards are developed to grant same-sex pairs social and other advantages and legal rights without the title of marriage.
Three judges at least on the Constitution bench advocated this opinion during the hearing of the pleas striving recognition of same-sex marriages which has been going before the top court from the past two weeks.
Chief Justice of India (CJI) DY Chandrachud, who chairs the bench, said that the bench was not willing to go into the wedding at all but was keener to talk about the rights of two persons of the same sex to cohabitation and giving lawful recognition to the same.
“Once you recognise there is a right to cohabit. and it may be symptomatic of a sustained relationship. and once you say that right to cohabit a fundamental right, then it is the obligation of the state that all social impact of the cohabitation has a legal recognition. we are not going into marriage at all,” the CJI declared.
This was in comeback to the proposition made by Solicitor General Tushar Mehta, denoting the Central government, that while same-sex persons have the essential right to cohabitation, choose a spouse etc, the exact cannot be given the tag of a marriage.
“Right to love, right to cohabit, right to choose a partner, right to have a sexual orientation is a fundamental right but there is no fundamental right to seek recognition of that relationship as a marriage or in any other name,” the SG told.
Justice PS Narasimha expressed that recognition need not be an acclaim as a marriage but can be distinction that authorizes same-sex couple to certain advantages.
“When we say recognition, it need not be recognition as marriage. It may mean recognition which entitles them to certain benefits. The association of two people need not be equated to marriage,” he spoke out.
Justice S Ravindra Bhat also communicated identical perspectives.
“Not marriage but some label is needed,” he expressed.
CJI Chandrachud declared that the government was being propelled to attend to this topic owing to the point that if court decides or enters into this arena, it would be entering and deciding a legislative issue.
The CJI inquired of what the government aspires to do in concern to cohabiting unions and how it hopes to develop a feeling of safety and social interest for such affinities. The CJI further stressed the significance of assuring that people in such relationships are not ostracized.
“Why we are pushing the government is because we understand your point that entering this arena will require legislation. So now what? What does the government want to do with cohabitory relations? And how can a sense of security and social welfare be made to ensure that such relations are not ostracized?” he contested.
SGMehta declared that the Centre could aid in the subtraction of these hardships or difficulties but could not approve of any legal recognition or status (of marriage).
“The modality adopted is important since the term used can also be partner. if not that then it may be counter productive,” Justice Bhat said.
To this, the CJI spoke that the SG could talk about this with the relevant authority and reach back to the Court on May 3, the next date of hearing in the lawsuit.
“We request you to assist us in a non adversarial manner,” the CJI enunciated.
Written by Sonakshi Misra, 2nd year (4th semester) B.A.LL.B. Hons. student at Atal Bihari Vajpayee School of Legal Studies, Chhatrapati Shahu Ji Maharaj University, Kanpur.
