New Delhi:

The Supreme Court is scheduled to consider on July 10 a batch of pleas seeking review of its last year’s judgement which refused to accord legal recognition to same-sex marriage.

According to the cause list of July 10 uploaded on the top court website, a five-judge bench headed by Chief Justice DY Chandrachud would consider in-chamber the pleas seeking review of the October 17 last year verdict.

As per the practice, the review pleas are considered in-chamber by five-judge benches.

Besides the CJI, the other members of the bench will be Justices Sanjiv Khanna, Hima Kohli, BV Nagarathna and PS Narasimha.

In a setback to gay rights activists, the top court had on October 17 last year refused to accord legal recognition to same-sex marriage, saying there was “no unqualified right” to marriage with the exception of those that are recognised by law.

The top court, however, had made a strong pitch for the rights of queer people so they don’t face discrimination in accessing goods and services that are available to others, safe houses known as ‘Garima Greh’ in all districts to provide shelter to members of the community facing harassment and violence and dedicated hotline numbers which they could use in case of trouble.

Holding that transgender people in heterosexual relationships have the freedom and entitlement to marry under the existing statutory provisions, the top court had said an entitlement to legal recognition of the right to union, akin to marriage or civil union, or conferring legal status to the relationship can be only done through “enacted law”.

A five-judge constitution bench headed by CJI Chandrachud had delivered four separate verdicts on a batch of 21 petitions seeking legal sanction for same-sex marriages.

All the five judges were unanimous in refusing to accord legal recognition to same-sex marriage under the Special Marriage Act and had observed it was within Parliament’s ambit to change the law for validating such union.

While the CJI had written a separate 247-page verdict, Justice Sanjay Kishan Kaul (since retired) had penned a 17-page judgement in which he broadly agreed with Justice Chandrachud’s views.

Justice S Ravindra Bhat (since retired), who authored an 89-page judgement for himself and Justice Hima Kohli, had disagreed with certain conclusions arrived at by the CJI including on applicability of adoption rules for queer couples.

Justice PS Narasimha had said in his 13-page verdict that he was in complete agreement with the reasoning given and conclusions arrived at by Justice Bhat.

The judges were unanimous in holding that queerness is a natural phenomenon and not “urban or elite” occurrence.

In his judgement, the CJI had recorded the assurance by Solicitor General Tushar Mehta that the Centre will constitute a committee chaired by the Cabinet Secretary for the purpose of defining and elucidating the scope of entitlements of queer couples who are in union.

The LGBTQIA rights activists, who had won a major legal battle in 2018 in the Supreme Court which decriminalised consensual gay sex, had moved the top court seeking validation of same-sex marriage and consequential reliefs such as rights to adoption, enrollment as parents in schools, opening of bank accounts and availing succession and insurance benefits. Some of the petitioners had urged the top court to use its plenary power, “prestige and moral authority” to push the society to acknowledge such a union which would ensure LGBTQIA lead a “dignified” life like heterosexuals.

LGBTQIA+ stands for lesbian, gay, bisexual, transgender, queer, intersex, asexual and allied persons.
 

(Except for the headline, this story has not been edited by NDTV staff and is published from a syndicated feed.)

Windhoek:

A high court in Namibia declared two colonial-era laws that criminalised same-sex acts between men unconstitutional on Friday, in a landmark win for the LGBTQ community in the southern African country.

The case was brought by Namibian activist Friedel Dausab with the support of British-based non-governmental organisation Human Dignity Trust.

Dausab told Reuters he was “just happy” after the court’s decision. “It’s a great day for Namibia,” he said. “It won’t be a crime to love anymore.”

Consensual same-sex activity is prohibited in more than half of 54 African countries, according to ILGA, an international organisation supporting LGBTQ rights.

“This victory also brings much-needed and renewed energy to other decriminalisation efforts across Africa,” said Téa Braun, chief executive of the Human Dignity Trust.

Rights campaigners say that, while convictions under the laws on “sodomy” and “unnatural sexual offences” were relatively rare in Namibia, they have perpetuated discrimination against the LGBTQ community and made gay men live in fear of arrest.

John Nakuta, a law professor at the University of Namibia, said the court’s order can be appealed by the Namibian government within 21 days.

Namibia inherited the laws when it gained independence from South Africa in 1990, though same-sex acts between men were initially criminalised under colonial rule.

South Africa has since decriminalised same-sex sexual activity and is the only country on the African continent to allow LGBTQ couples to adopt children, marry and enter civil unions.

Last year, Uganda enacted one of the world’s harshest anti-LGBTQ laws, which included the death penalty for “aggravated homosexuality”, despite widespread condemnations from the West.

LGBTQ supporters gathered outside the court carrying banners that read, “Get the law out of my love life”, and “Peace, Love, Unity”, told Reuters they were overjoyed.

Omar van Reenen, co-founder of the Namibia Equal Rights Movement, welcomed the court’s judgment and said the LGBTQ community in Namibia could finally feel like equal citizens.

“The message that the court sent today is that we have every right to belong and exist in this country and that the constitution protects us,” said van Reenen.

(Except for the headline, this story has not been edited by NDTV staff and is published from a syndicated feed.)

New Delhi:

A petition has been filed in the Supreme Court seeking a review of its October 17 verdict in which it had refused to accord legal recognition to same-sex marriage. The petition states that the majority judgment acknowledged discrimination against queer couples but “turned them away with best wishes for the future”.

The review peition by one of the petitioners, Udit Sood, has been filed with the Supreme Court registry.

“The Petitioners respectfully submit that this Court ought to review and correct its decision in… because the impugned judgment suffers from errors apparent on the face of the record and is self-contradictory and manifestly unjust,” the review plea said.

It added that the majority judgment led by Justice S Ravindra Bhat, since retired, is “facially erroneous because it finds that the respondents (Centre and others) are violating the petitioners’ fundamental rights through discrimination” but fails to end that discrimination.

On the majority view of Justices Bhat, Hima Kohli and PS Narasimha, the review petition said that they neutered the top court’s jurisdiction.

“With respect, the majority judgment neuters this Court’s jurisdiction, holding that while ‘recognition’ of discrimination and violation of the petitioners’ fundamental rights ‘is this court’s obligation, falling within its remit’, separation of powers prohibits this court from enjoining the discrimination or otherwise protecting those fundamental rights,” the petition said.

It said there was an error apparent on the face of the record and an abdication of the duty entrusted to this court by the Constitution.

The petiton further said “to find that the petitioners are enduring discrimination, but then turn them away with best wishes for the future, conforms neither with this court’s constitutional obligation towards queer Indians nor with the separation of powers contemplated in the Constitution.”

It added, “The majority judgment warrants review because it summarily disregards the foregoing authority to make the chilling declaration that the Constitution of India guarantees no fundamental right to marry, found a family, or form a civil union.”

The petition said the majority judgment is also self-contradictory in its understanding of ‘marriage’.

“It acknowledges that the Special Marriage Act, 1954 (SMA) confers the ‘status’ of marriage, observing that the Act ‘in fact created social status or facilitated the status of individuals in private fields’ and that the Parliament ‘has intervened and facilitated creation of social status (marriage) through SMA’,” the plea said.

“Our constitution primarily tasks this court-not the respondents (Centre and others) – with upholding fundamental rights. ‘This Court has no more important function than to preserve the inviolable fundamental rights of the people’,” it said, referring to a 1963 verdict.

A five-judge constitution bench had, on October 17, refused to accord legal recognition to same-sex marriage, saying there was “no unqualified right” to marriage with the exception of those that are recognised by law.

The Constitution bench headed by Chief Justice DY Chandrachud had delivered four separate verdicts on a batch of 21 petitions seeking legal sanction for gay marriages.

All the five judges were unanimous in refusing to give legal backing to same-sex marriage under the Special Marriage Act and observed it is within Parliament’s ambit to change the law for validating such union.

However, by a majority of 3:2, the top court held that the queer couples do not have the right of adoption.

In his verdict, the CJI passed a slew of directions to the Centre, states and Union Territories to ensure that the queer community is not discriminated against because of their gender identity or sexual orientation and also to take steps to sensitise the public about queer identity, including that it is natural and not a mental disorder.

Justice S Ravindra Bhat, since retired, who authored an 89-page judgment for himself and Justice Hima Kohli, had disagreed with certain conclusions arrived at by the CJI including on the applicability of adoption rules for queer couples and according recognition of right to civil union.

Justice PS Narasimha, in a separate verdict, had concurred with the views of Justice Bhat.

Referring to the statement made by the Centre during the hearing on the matter, Justice Bhat had said “…the Union shall set up a high-powered committee chaired by the Union Cabinet Secretary, to undertake a comprehensive examination of all relevant factors, especially including those outlined above. In the conduct of such exercise, the concerned representatives of all stakeholders, and views of all States and Union Territories shall be taken into account”.

In his judgment, the CJI also recorded the assurance by Solicitor General Tushar Mehta that the Centre would constitute a committee chaired by the Cabinet Secretary for the purpose of defining and elucidating the scope of the entitlements of queer couples who are in union.

The petitioners, who had won a major legal battle in 2018 in the Supreme Court which decriminalised consensual gay sex, had moved the Supreme Court seeking validation of same-sex marriage and consequential reliefs such as rights to adoption, enrolment as parents in schools, opening of bank accounts and availing succession and insurance benefits.

(Except for the headline, this story has not been edited by NDTV staff and is published from a syndicated feed.)

LGTBQ activist and petitioner for same sex-marriages Shivangi Sharma speaks with the media at the courtyard of India’s Supreme Court in New Delhi on October 17, 2023.
| Photo Credit: Shashi Shekhar Kashyap

Though the Supreme Court has refused to legalise same-sex marriage, the Constitution Bench judgment is a formidable step to silence hostile voices who claim that homosexuality and gender queerness are un-Indian.

“It is not queerness which is of foreign origin but the many shades of prejudice in India which are remnants of a colonial past,” Chief Justice of India (CJI) D.Y. Chandrachud observed.

The judgment bells the cat on how atypical gender identity or sexual orientation is still considered alien, urban and elite – a view put forward in court even by the Union government during the arguments of the same-sex marriage case. The Constitution Bench’s comments highlighting societal and even state discrimination on the basis of sexual orientation comes five years after the apex court decriminalised homosexuality.

Why did the Supreme Court not allow same-sex marriage? | Explained 

Justice Sanjay Kishan Kaul accepted non-heterosexual relationships as part of the “pluralistic social fabric” and an “integral part of Indian culture”.

All the five judges on the Bench agreed that queerness was not a phenomenon limited to the few and English-speaking urban rich. Expressions of queerness are more visible in urban centres as cities afford a degree of anonymity and access to resources, the Chief Justice reasoned. Queerness is not urban or elite. Persons of any geographic location or background may be queer, the court said in one voice.

Chief Justice Chandrachud delved into the notion “homosexuality or gender queerness is not native to India”. He said to deflate this prejudice, one has to define the term ‘Indian’. The Chief Justice did so by recording that “a thing, an occurrence, or a practice is ‘Indian’ when it is present in India, takes place here, or is practised by Indian citizens. Something which is Indian could be present from time immemorial or it could be a recent development… Sexual and gender minorities are as Indian as their fellow citizens who are cisgender and heterosexual”.

The Chief Justice said the nation and its constitutional authorities should not shrug off the rising call for equality from within the LGBTQIA community. Their demand to legalise same-sex marriage should not be dismissed as a copycat idea borrowed from abroad, he noted.

Supreme Court’s verdict on same-sex marriages | Explained 

“The recent visibility of queerness is not an assertion of an entirely novel identity but the reassertion of an age-old one… An environment has been fostered which is conducive to queer persons expressing themselves without the fear of opprobrium,” Chief Justice Chandrachud observed.

He said the British brought not only their laws but also their morality to India. He referred to how transgender persons were referred to as “eunuchs” in the Criminal Tribes Act and included in the category of “habitual offenders”.

The Act heaped “enormous indignity” on trans-persons by permitting the government to medically examine them, penalising them for dressing “like a woman” or playing music or dancing and had even rendered their will invalid.

New Delhi:

A prominent gay couple expressed their disappointment over the Supreme Court setback in the same-sex marriage matter, but vowed to “fight another day”.

Writer Ananya Kotia and lawyer Utkarsh Saxena exchanged rings in front of the Supreme Court today and announced their engagement.

The Supreme Court yesterday stopped short of legalising marriage equality, but stressed that an individual’s right to enter into a union cannot be restricted on the basis of sexual orientation. The five-judge bench came up with four judgments, differing primarily on the question of adoption rights for queer couples.

The judges asked the centre to proceed with the formation of a committee to address practical concerns of same-sex couples, such as getting ration cards, pension, gratuity and succession issues.

In a post on X today, Ananya Kotia said the “legal loss” they have suffered is in the past tense, and indicated they will not give up.

“Yesterday hurt. Today, Utkarsh Saxena and I went back to the court that denied our rights, and exchanged rings. So this week wasn’t about a legal loss, but our engagement. We’ll return to fight another day,” Ananya Kotia said in the post.

The post has a photo showing the gay couple exchanging rings in a garden, with the dome of the Supreme Court building in the background.

Yesterday hurt. Today, @utkarsh__saxena and I went back to the court that denied our rights, and exchanged rings. So this week wasn’t about a legal loss, but our engagement. We’ll return to fight another day. pic.twitter.com/ALJFIhgQ5I

— Kotia (@AnanyaKotia) October 18, 2023

The centre had on May 3 told the court that it plans to form a committee headed by the cabinet secretary to explore administrative solution to problems faced by same-sex couples without delving into the marriage equality question.

The bench gave a three-two judgment on the question of adoption rights. Chief Justice of India DY Chandrachud and Justice SK Kaul recognised the right of queer couples to adopt, while Justice S Ravindra Bhat, Justice PS Narasimha and Justice Hima Kohli disagreed.

“There is a degree of agreement and a degree of disagreement on how far we have to go. I have dealt with the issue of judicial review and separation of powers,” Justice Chandrachud said.

Disagreeing with the centre’s argument that marriage equality is an urban, elite concept, the Chief Justice said, “Queerness is not urban elite. Homosexuality or queerness is not an urban concept or restricted to the upper classes of the society.”

Justice Bhat said the court cannot create a legal framework for queer couples and it is for the legislature to do as there are several aspects to be taken into consideration.

On the issue of adoption, Justice Bhat said they disagree with the Chief Justice on the right of queer couples to adopt. “We voice certain concerns. This is not to say that unmarried or non-heterosexual couples can’t be good parents… given the objective of section 57, the State as parens patriae has to explore all areas and to ensure all benefits reach the children at large in need of stable homes.”

New Delhi:

On the surface, the Supreme Court’s decision to not legalise same-sex marriages or extend adoption rights to queer couples may appear disappointing, but read between the lines, and there is much to cheer about. Petitioners in the case, too, have noted the many points made by the judges in the favour of the queer community.

What’s Good

The five-judge bench’s refusal to legalise same-sex marriages is based not on an in-principle opposition to marriage equality, but on legal technicalities and concerns of judicial legislation.

All the judges agreed the queer couples are neither urban nor elitist, countering an argument of the centre during the hearing in the case.

The judges also noted the centre’s submission that a panel headed by the cabinet secretary will look into practical difficulties faced by same-sex couples. The bench agreed that difficulties faced by queer couples in accessing basic services are discriminatory in nature and said the government panel must look into them.

What Do Petitioners Say

Responding to the judgment, Geeta Luthra, senior advocate and counsel for several petitioners in the case, told news agency ANI, “Even if the right to marriage has not been given, CJI has said that the same bundle of rights which every married couple has should be available to same-sex couples.”

LGBTQIA+ rights activist Harish Iyer, one of the petitioners, also noted the observations in favour of the queer community. “Though at the end, the verdict was not in our favour but, so many observations made were in our favour. They have also put the responsibility on the central government. The Solicitor General said so many things against us, so it is important for us to go to our elected government, MPs and MLAs and tell them we are as different as two people. War is underway… it might take sometime but we will get societal equality,” ANI quoted him as saying.

Anjali Gopalan, petitioner and activist, said they “have been fighting for long and will keep doing so”. “Regarding adoption also nothing was done, what the CJI said was very good regarding adoption, but it’s disappointing that other justices didn’t agree… This is democracy but we are denying basic rights to our own citizens,” she told ANI.

Concerns Of Delay

The centre had in May submitted that it plans to set up a panel headed by the cabinet secretary to look into practical issues faced by same-sex couples in accessing services such as Provident Fund and pension. Following that submission, there has been no update on whether this panel met and held discussions over the issue.

Rights of same-sex couples are not an election issue, but any move on this matter can have significant political ramifications. Also, any step towards legalising same-sex marriages is bound to face resistance from within the society, including religious organisations.

With the country gearing up for a general election next year, same-sex couples and their rights may not feature high on the government’s priority list, especially considering the political impact any such move may have.

Key Observations Today

Chief Justice of India DY Chandrachud stressed that an individual’s right to enter into a union cannot be restricted on the basis of sexual orientation.

The Chief Justice, however, underlined that the court must be careful to not enter the legislative domain, and said it is for Parliament to decide if changes are needed in the Special Marriage Act.

The petitioners had challenged the constitutionality of some provisions of Hindu Marriage Act, Foreign Marriage Act, Special Marriage Act and other marriage laws on the grounds that they deny same-sex couples the right to marry. They had requested the court to read these provisions broadly to include same-sex marriage. The court had earlier clarified that it will not go into personal laws and only look at Special Marriage Act. 

The Chief Justice backed same-sex couples’ right to adopt children, a stand opposed by the majority of judges on the bench. 

“Law cannot assume that only heterosexual couples can be good parents. This would amount to discrimination,” he said, questioning the current norms that bar queer couples from adopting children.

The Chief Justice also listed several directions for the centre and state government, asking them to ensure queer couples are not discriminated against and to spread awareness about queer rights, among others.

Agreeing with the Chief Justice, Justice SK Kaul said non-heterosexual unions and heterosexual unions “must be seen as both sides of the same coin”. He also said this is an opportunity to “remedy historical injustice” and grant recognition to such unions.

Reading out the majority judgment that differed with Chief Justice Chandrachud and Justice Kaul on the question of adoption, Justice S Ravindra Bhat agreed with the Chief Justice that “queerness is neither urban nor elitist”. However, he said there are difficulties in creating through a judicial diktat a right to civil union.

The court cannot create a legal framework for queer couples and it is for the legislature to do as there are several aspects to be taken into consideration, he added.

Ruling out any tweak in the Special Marriage Act, he said, “A gender neutral interpretation of the Special Marriage Act may not be equitable at times and can result in women being exposed to vulnerabilities in an unintended manner.” The judge agreed that denial of benefits such as Provident Fund, pension etc to queer partners may have an “adverse discriminatory effect”.

Opposing the minority judgment on the issue of extending adoption rights to same-sex couples, Justice Bhat said, “This is not to say that unmarried or non-heterosexual couples can’t be good parents… given the objective of section 57, the State as parens patriae has to explore all areas and to ensure all benefits reach the children at large in need of stable homes.”

Justice PS Narasimha, who agreed with Justice Bhat, said a review of legislative schemes that excludes same-sex partners from pension, PF, gratuity and insurance benefits was needed.

New Delhi:

The Supreme Court today directed the Centre and the state governments to ensure that queer people are not discriminated against on the basis of their sexual orientation.

Directing the government to sentisize the public about queer rights and set up a hotline for them, Chief Justice DY Chandrachud said that queer is a natural phenomenon known for ages, and is neither urban nor elitist.

“Queerness is neither urban nor elitist. However, we do not agree with the directions issued by the Chief Justice of India,” Justice Chandrachud said.

He directed the police to conduct a preliminary enquiry before registering a First Information Report or FIR against a queer couple over their relationship.

“There shall be no harassment to queer community by summoning them to police station solely to enquire about their sexual identity,” he said.

He said that the people of the queer community can’t be forced to return to their families or to undergo any hormonal therapy.

He also asked the government to ensure that inter-sex children are not forced for sex change operations.

A five-judge Constitution bench of the Supreme Court today refused to grant legal recognition to same-sex marriages. The Chief Justice said the court can’t make law but only interpret it, and it is for Parliament to change the Special Marriage Act.

“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,” he said.

The Supreme Court asked the Centre to proceed with the formation of a committee to address practical concerns of same-sex couples, such as getting ration cards, pension, gratuity, and succession issues.

New Delhi:

The Supreme Court will today deliver its much-anticipated judgment on petitions seeking legal recognition for same-sex marriage.

A five-judge bench headed by CJI DY Chandrachud, Sanjay Kishan Kaul, Ravindra Bhat, Hima Kohli, and PS Narishma insisted that it was only looking at the legal aspect of the Special Marriage Act and the Foreign Marriage Act and not recognising non-heterosexual marriages

The government has consistently opposed the recognition of same-sex marriage, calling it an urban elitist concept and arguing that it is up to parliament to decide and debate this issue.

A five-judge Constitutional Bench headed by CJI Chandrachud withheld its judgment on the petitions for legal recognition of same-sex marriage on May 11, following a ten-day marathon hearing.

The Centre is contesting the maintainability of more than 21 petitions seeking legal recognition of same-sex marriage, arguing that the courts do not have the authority to create or recognize marriages through judicial interpretation or legislative amendments.

The court has already made it clear that it is not touching personal laws, such as the Hindu Marriages Act, and was only confining itself to the Special Marriage Act.

“Sometimes incremental changes in issues of societal ramifications are better. There is time for everything,” Justice Sanjay Kaul said. 

The Centre had argued that marriage was an exclusive heterosexual institution and that those seeking marriage equality were urban elites. The Supreme Court strongly objected to this argument, asking on what basis it was made without any data. Then, Senior Advocate K.V. Vishwanathan presented the case of his client, a transgender person who was disowned and begged on the streets, who was seeking recognition of same-sex marriages.

The Centre through Solicitor General of India Tushar Mehta had argued that the biological gender defined a person’s gender, which was challenged by CJI Chandrachud.

“There is no absolute concept of a man or an absolute concept of a woman at all. It’s not the question of what your genitals are. It’s far more complex, that’s the point. So even when the Special Marriage Act says man and woman, the very notion of a man and a woman is not absolute based on genitals,” the CJI said.

The Bar Council of India had requested the Supreme Court to leave the issue to the parliament and stated that “99% of people” opposed same-sex marriages.

During the course of the hearing, the Centre agreed to a committee headed by the cabinet secretary to examine whether legal rights could be granted to same-sex couples without legal recognition of their relationship as a marriage. The Supreme Court had wanted executive guidelines to be issued to same-sex couples to enable them to have financial security, such as opening joint bank accounts as spouses, provident funds, etc.