Same-sex couples face discrimination because they are not legally permitted to marry – but the legislature, not the judiciary, can provide them relief. This was the broad theme of the judgment delivered by the Supreme Court five-judge constitution bench on Tuesday.
The bench – comprising Chief Justice DY Chandrachud and Justices SK Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha – had heard a batch of petitions in April and May demanding marriage equality for the queer community.
The judgement includes four opinions. All of them pay lip service to the idea of queer rights but offer little in terms of the actually achieving those rights. The only noteworthy change introduced in the order is its affirmation that transgender people can marry under India’s existing marriage laws.
Of the four opinions, the one by Bhat, on behalf of himself and Kohli, is the majority opinion since it is also fully endorsed by Narasimha’s opinion. As per judicial custom, the directions contained in the majority opinion are what the state is obliged to follow.
The opinions by Chandrachud and Kaul, in consonance with each other, differ from the majority on two key areas: the legal recognition of same-sex unions, and adoption by same-sex couples. These minority opinions, which are not…
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