New Delhi: A group of former judges has welcomed and appreciated the Supreme Court ruling, which has not favoured the legal recognition to same-sex marriage.
"We are a group of former judges, conscientious and concerned citizens of India, and appreciate the Supreme Court verdict on same-sex relation delivered on October 17, 2023, and it has received overwhelming applause from society except the LGBTQ+ community and a minuscule section thereof," former judges said in a statement.
Around 22 former judges have welcomed the decisions, including Justice Permod Kohli Former Chief Justice Sikkim High Court, Justice S M Soni Former Judge Gujarat High Court and Lokayukta State of Gujarat, Justice Narender Kumar Former Actg Chief Justice Rajasthan High Court, Justice S N Dhingra Former Judge Delhi High Court, Justice Ambadas H Joshi Former Judge Bombay High Court, Justice R C Chavan Former Judge Bombay High Court, Justice R S Rathore Former Judge Rajasthan High Court, Justice K K Trivedi Former Judge MP High Court among others.
They said that the judgement is a blend of interpretation of statutory provisions, culture and morality. It is relevant in the context of Indian culture, ethos, and heritage.
The Supreme Court has unanimously ruled that the right to marriage is not a fundamental right.
"On the question of same-sex marriage, the court has again unanimously held that marriage being not a fundamental right, such a right can only be conferred and regulated by the statute enacted by an appropriate legislative body (the subject being in the concurrent list), both Parliament and State assembly are competent to legislate," the former judges' group said.
The former judges said that it also convincingly ruled that it is not within the jurisdiction of the court to make provisions for recognising such marriages either by interpreting or down reading the existing statutes (In particular reference to "The Special Marriage Act 1954") and that it is within the domain of Parliament.
The Hon'ble Court has reconfirmed the well-settled principle of separation of power enshrined in the Constitution of India, holding that the jurisdiction of the court is to interpret the constitutional and statutory provisions and not to venture into the legislative domain, which solely vests with the competent legislature.
"The thrust of minority views on equality, individual dignity, choice of civil union irrespective of sexual orientation, and privacy emanating from Articles 19, 21, and 25 of the constitution of India did not find favour with the majority on the bench," the former judges said.
An important feature of the majority view is the recognition of marriage as a social institution in existence from times immemorial, predating the concept of state, the former judges further said.
"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 added.
"Queer's right to adoption has also not been recognised by the Apex Court and rightly so. Even existing statutory provisions also restrict the rights of a single person to adopt e.g. under Section 57 of the Juvenile Justice (Care and Protection of Children) Act 2015, a single male is prohibited from adopting a female child," they said.
Similarly, Section 11 of the Hindu Adoption and Maintenance Act, 1956, prescribes an age difference of 21 years, if the male is to adopt a female child or if a female is to adopt a male child, the former judges said.
Notwithstanding the debate, unanimity in some areas and differing views in other issues, the judgement, particularly the majority view representing Indian traditions and belles lettres, deserves all appreciation, they added. (ANI)
