The Supreme Court, which had decriminalized homosexual relations five years ago, is giving an important decision on the issue of giving legal recognition to gay marriage. The CJI has said that there are a total of four different decisions. Judicial review is appropriate as per the Constitution. In such a situation, we considered the matter of fundamental rights. Courts do not make laws. Gay marriage has been legalized in 34 countries of the world. Among the 20 petitions filed by Supriyo Chakraborty and others, there is a demand to legalize marriage between two men or two women on the lines of heterosexual couples and provide them with all the rights, that is, property, inheritance, every right including the process of adoption, to heterosexual couples. Be that as it may, the central government had told the court that without recognizing the marriage of gay couples, it could consider giving some rights. Also asked to form a committee.
The Constitution Bench headed by CJI DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat, Justice Hima Kohli and Justice PS Narasimha is giving its verdict on the petitions to give legal recognition to gay marriage. The Constitution Bench had reserved its verdict on this issue on May 11 this year after a 10-day hearing.
What is the intention of the government in this matter?
Apart from homosexual Supriyo Chakraborty, those who filed the petition in the Supreme Court include Udayraj Anand, Abhay Dang, Parth Firoz Mehrotra and others. In all the petitions, there has been a demand to give legal recognition to gay marriage. It has been said in the Special Marriage Act that inter-religious and inter-caste marriages have been protected, but homosexuals have been discriminated against.
On the other hand, Solicitor General Tushar Mehta, on behalf of the Centre, had told the Constitution Bench that the government will form a committee and find a solution to the issue of rights of gay couples. This committee will not consider the issue of giving legal recognition to the marriage of these couples. Petitioners i.e. those demanding gay marriage can give their suggestions regarding the problems. In his suggestions he can tell the government what steps should be taken. Mehta had said that the government is positive on this. Remember that the Center had replied when the Supreme Court had asked what was the government's intention in this matter?
Supreme Court had asked this question to the government
The Supreme Court had asked the Central Government that if the court enters into this then it will become a legal issue. The government should explain what it intends to do in this regard and how it is working for the safety and welfare of such people. Homosexuals cannot be ostracized from society. Then the Center had said that the Special Marriage Act is only for heterosexual people. It was introduced for the marriage of heterosexuals having faith in different religions. The government is not obliged to recognize every personal relationship. The petitioners want new laws to be made with a new purpose, which had not been imagined till now.
The Center had said that a new definition cannot be forced. The court cannot take different views for different categories of people under the same law. We cannot be forced to come up with a new definition. He said that what is the meaning of 'plus' in LGBTQIA+, it has not been explained. He asked, there are at least 72 shades and categories of people in this plus. If this court recognizes undefined categories, the decision will impact 160 laws, how do we streamline this?
Who decides what is a valid marriage?
Mehta had further said that there are some people who refuse to be identified under any gender. He had said, how will the law identify them? As a man or a woman? There is a category which says that gender depends on mood swings. In such a situation, no one knows what their gender will be. The real question is who will decide in this case what constitutes a valid marriage and between whom. Mehta had argued whether this matter should not first go to the Parliament or the state assemblies, while the petitioners said that 34 countries of the world have recognized gay marriage. These also include 12 countries of G-20. We should not lag behind in this matter. The petitioner said that Parliament has not given any positive answer regarding the rights of LGBTQ+ in 5 years.
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