Tambaram: The Supreme Court today 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.
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 3-2 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,” he said, Justice Chandrachud said.
Choosing a life partner is an integral part of choosing one’s course of life, the Chief Justice 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 said.
“The right to enter into union includes the right to choose one’s partner and the right to recognition of that union. A failure to recognise such associations will result in discrimination against queer couples,” the Chief Justice said, adding, “the right to enter into union cannot be restricted on the basis of sexual orientation”.
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.”
