Same-sex union: SCBA welcomes decision, says legisation is Parliament's domain

New Delhi: The Supreme Court Bar Association has welcomed the Supreme Court's ruling on the same-sex marriage matter where the apex court has accepted the version of the central government and the right to legislation lies in the domain of Parliament.
"I'm happy that the Supreme Court of India has accepted the version of the government of India in which it was argued that the court has no power to give this right of same-sex marriage. It is the only right of the Indian parliament. Today it has been accepted by the honourable Supreme Court. We are happy that the Supreme Court has held that this power can't be given to the same sex for having a marriage because India is an ancient country," Adish Aggarwala, President of the association, said.
"India has its own values in society. So by not providing this right, we hail the judgment of the Supreme Court on this aspect," said Aggarwala.
"Some people try to spoil the atmosphere of the Indian system. Those elements who wanted to harm our society, the court's observation has put the case to rest with a full stop. Some foreign powers that want to stop India from becoming developed, breakdown our system and society, they have suffered a setback."
When asked about the child adoption rights, he said it is yet to be properly studied.
"Only by mere this statement by the court will not be sufficient. There will be changes will be required in our acts without the amendment that also can't be accepted that can't be implemented," he noted.
Senior advocate Geeta Luthra who appeared for some of the petitioners in the marriage equality case said, "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."
One of the petitioners and LGBTQIA+ rights activist Harish Iyer said, "Though at the end, the verdict was not in our favour but so many observations(by Supreme Court) made were in our favour. They have also put the responsibility on Central govt and Central govt's Solicitor General said so many things against us so it is important for us to go to our elected govt, 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"
Another petitioner and activist Anjali Gopalan noted, "We 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"
A five-judge Supreme Court Constitution bench today in a majority verdict ruled that for LGBTQIA+ couples there is no unqualified right to marriage and that conferring legal status to civil union can only be through enacted law.
The bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha delivered the verdict it had reserved on May 11 this year.
The court, however, said the judgement will not preclude the right of Queer persons to enter into relationships. The apex court also said that the challenge to the Special Marriage Act (SMA) on the ground of under-classification is not made out.
Justice Ravindra Bhat, Justice Narasimha and Justice Hima Kohli were in agreement on these positions, while CJI Chandrachud and Justice Sanjay Kishan Kaul took divergent positions.
In his majority judgement Justice Bhat said the Court can't put the State under any obligation when there is no constitutional right to marry or legal recognition of unions among non-heterosexual couples. 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. All queer persons have the right to choose their partners but State cannot be obligated to recognise the bouquet of rights flowing from such a union.
Justice Bhat further said a general neutral interpretation of Special Marriage Act may not be equitable at times and can lead to women being led to vulnerabilities in an unintended manner. The purpose of terms like wife, husband etc. is aimed to protect the vulnerable and the women facing domestic violence is there to ensure they receive justice. Thus, interpreting the Special Marriage Act as desired would render it unworkable.
Justice Bhat also disagreed with the CJI on the right of queer couples to adopt and he raised certain concerns.
In his conclusion Justice Bhat said there is no unqualified right to marriage. Conferring legal status to civil union can only be through enacted law. But these findings will not preclude the right of queer persons to enter into relationships.
In his order Justice Bhat said challenge to Special Marriage Act on the ground of under-classification is not made out.
Justice Hima Kohli said she agrees with the view of Justice Ravindra Bhat. Justice Narasimha also said he agrees with the view of Justice Ravindra Bhat. Earlier CJI DY Chandrachud and Justice Sanjay Kishan Kaul gave divergent judgements.
The five-judge Constitution bench was dealing with a batch of petitions pertaining to marriage equality rights for LGBTQIA+ community. The order was reserved on May 11 after counsels from all sides concluded their arguments.