Group of ex-judges praises SC verdict denying legal recognition to same-sex marriage

PTI, Oct 21, 2023, 5:14 PM IST

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A group of former judges on Saturday praised the Supreme Court verdict refusing to grant legal recognition to same-sex marriage, saying it is a blend of interpretation of statutory provisions, culture and morality.

The judgement has received “overwhelming applaud” from society except the LGBTQ+ community and a minuscule section thereof, the former judges claimed in a statement.

The judgement is relevant in the context of Indian culture, ethos and heritage, they said, citing various points of the verdict.

Twenty-two former high court judges, including Permod Kohli, S M Soni, A N Dhingra and R C Chavan, put out the statement.

The Supreme Court on Tuesday refused to accord legal recognition to same-sex marriage, saying there was “no unqualified right” to marriage with the exception of those that are recognised by law.

Holding that transgender people in heterosexual relationships have the freedom and entitlement to marry under the existing statutory provisions, the apex court said an entitlement to legal recognition of the right to union, akin to marriage or civil union, or conferring legal status to the relationship can be only done through “enacted law”.

In their statement, the former judges said the apex court has convincingly ruled that it is not within its jurisdiction to make provisions for recognising such marriages and that it is within the domain of Parliament.

“Hon’ble court has reconfirmed the well-settled principle of separation of power enshrined in the Constitution holding that the jurisdiction of the court is to interpret the constitutional and statutory provisions, and not to venture into legislative domain, which solely vests with the competent legislature,” they said.

The thrust of the minority view in the five-member bench on equality, individual dignity, choice of civil union irrespective of sexual orientation and privacy emanating from Articles 19, 21 and 25 of the Constitution did not find favour with the majority in the bench, they noted.

“An important feature of the majority view is recognition of marriage as a social institution in existence from times immemorial, pre-dating the concept of state. This gives credence to the bond of marriage between a man and a woman constituting family as a primary unit of civil society as propounded by our scriptures,” they said.

Noting that the queers’ right to adoption has also not been recognised by the court, the former judges praised the view.

The existing statutory provisions also restrict the rights of a single person to adopt, they said.

“Notwithstanding the debate, unanimity in some areas and differing views on other issues, the judgement, particularly the majority view representing Indian traditions, deserves all appreciation,” they said.