“Striking Down Special Marriage Act Will Take India To…”: Chief Justice

New Delhi:

Chief Justice of India DY Chandrachud, presiding over a hearing on the legalisation of same-sex marriage, said if the Special Marriage Act (SMA) is struck down, it will take the country to the “pre-independence era”.

The Supreme Court is issuing its long-awaited ruling on the petitions requesting legal recognition for same-sex marriage today. A five-judge bench led by Chief Justice DY Chandrachud and comprising Justices Sanjay Kishan Kaul, Ravindra Bhat, Hima Kohli, and PS Narasimha emphasised that they were only considering the legal aspects of the Special Marriage Act and the Foreign Marriage Act and were not recognising non-heterosexual marriages.

“If the Special Marriage Act (SMA) is struck down, it will take the country to pre-Indpendence era. If the Court takes the second approach and reads words into the SMA, it will be taking up the role of legislature. The Court is not equipped to undertake such an exercise of reading meaning into the statute,” CJI Chandrachud said.

The CJI stated that it is up to Parliament to decide whether or not to amend the Special Marriage Act to allow same-sex marriage. 

“This Court must be careful to not enter into the legislative domain,” CJI Chandrachud said.

Justice Kaul disagreed with Justice Bhat’s judgment that the Special Marriage Act was passed solely to allow heterosexual marriages.

“I have said that the Special Marriage Act is violative of Article 14. However, there are interpretative limitations to including homosexual unions in it. As rightly pointed by the Solicitor General, tinkering with the Special Marriage Act can have a cascading effect.”

The Centre has consistently opposed the legalisation of same-sex marriage, arguing that it is up to parliament to decide this issue.

The Supreme Court, led by Chief Justice Chandrachud, postponed issuing a ruling on the petitions for same-sex marriage, following a ten-day hearing in May.

The Centre argued that marriage was only between a man and a woman and that people who wanted same-sex marriage were urban elites. 

“Queer is a natural phenomenon known for ages, it is neither urban nor elitist,” said CJI Chandrachud today, strongly opposing the Centre’s stance on the subject. 

CJI Chandrachud stressed that no one should be denied the right to marry because of their sexual orientation. He urged the government to move forward with the committee it formed to address the practical needs of same-sex couples.