The Supreme Court of India on Tuesday refused to grant marriage equality rights to the LGBTQIA+ community in the country, stating that the Special Marriage Act can only be amended by Parliament. Pronouncing the judgement on 21 pleas that had sought legality for same-sex marriages in India, a five-judge Constitution bench headed by Chief Justice DY Chandrachud said it has powers only to interpret laws, not make them.
The court in a 3:2 verdict, however, stressed that people should not be discriminated against on the basis of their sexual orientation.
Reading out his part of the judgement, the CJI issued directions to the police machinery with regard to cases dealing with queer persons.
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The CJI said the police should not harass queer couples by summoning them to the police station or by visiting their residences, in order to interrogate them about their gender identity or sexual orientation.
The police should also "not force queer persons to return to their native families if they do not wish to return to them".
When queer persons lodge a police complaint in response to alleged actions of their family to restrain their freedom of movement, the police shall, on verifying the genuineness of the complaint, should ensure that their freedom is not curtailed, CJI Chandrachud stated.
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"When a police complaint is filed apprehending violence from the family for the reason that the complainant is queer, or is in a queer relationship, they shall on verifying the genuineness of the complaint, ensure due protection," he added.
The CJI also directed the police machinery to first establish that there is a cognisable offence before registering an FIR against a queer couple or one of the two persons with regard to their relationship.
"Before registering an FIR against a queer couple, or one of the parties in a queer relationship, where the FIR is sought to be registered in relation to their relationship, they shall conduct a preliminary enquiry in terms of Lalita Kumari vs Government of UP to ensure that the complaint discloses a cognisable offence," CJI Chandrachud said.
The CJI also issued directions to the Central government, state governments and Union Territories to put in place measures to ensure the queer community is not discriminated against.
Queer is a natural phenomenon known for ages and is neither urban nor elitist, the CJI stated.
Justice Chandrachud further said the SC has taken note of the Centre's submission that it will set up a committee to decide the rights and entitlements of persons in queer unions.
