The Supreme Court, while delivering the same-sex marriage verdict on Tuesday, observed that choosing a life partner is an integral part of choosing one's course of life. "This right goes to the root of the right to life and liberty under Article 21. Right to enter into a union is also grounded in Article 19(1)(e)," Chief Justice D Y Chandrachud observed.
"For the full enjoyment of such relationships, such unions need recognition and there cannot be denial of basic goods and services. "A failure to recognize such associations will result in discrimination against queer couples. The Solicitor General said that the Union will set out a a committee to examine the rights which can be conferred on such couples," he said.
The CJI Chandrachud said homosexuality or queerness is not an urban concept or restricted to the upper classes of society. He added that queerness can be regardless of one's caste or class or socio-economic status.
"All those who live in cities can't be termed as elite. To image that queer people exist only in urban and elite spaces is to erase them," the CJI added.
Stressing that reforms in marriage have been brought about by Acts of the legislature, the court said that it was incorrect to state that marriage is a static and unchanging institution.
On the petitions challenging the Special Marriage Act, the CJI said it was for the Parliament to decide whether a change in the regime of the Special Marriage Act is needed. "If Special Marriage Act is struck down, it will take the country to pre-Indpendence era. If the Court takes the second approach and reads words into the Act, it will be taking up the role of legislature," the CJI added.
The CJI said he has dealt with the issue of judicial review and separation of powers. "The doctrine of separation of powers means that each of the three organs of the state perform distinct functions. No branch can function any others' function. The Union of India suggested that this court would violate the doctrine of separation of powers if it determines the list. However, the doctrine of separation of powers does not bar the power of judicial review. The Constitution demands that this court protect the fundamental rights of citizens. The doctrine of separation of powers does not come in the way of this court issuing directions for the protection of fundamental rights," CJI Chandrachud added.
A five-judge constitution bench headed by Chief Justice D Y Chandrachud had on May 11 reserved its verdict on the pleas after a marathon hearing of 10 days. The other members of the bench are Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and P S Narasimha.
