The News Freedom
New Delhi, October 17
The Supreme Court on Tuesday refused to legalise same-sex marriages, passing the responsibility back to Parliament. However, the Supreme Court recognised equal rights for queer people and their protection, while calling for sensitisation of the general public so they don’t face discrimination.A five-judge constitution bench comprising Chief Justice of India (CJI) D Y Chandrachud and justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and P S Narasimha gave four separate judgments. While passing separate verdicts, the Supreme Court was unanimous in holding that there is “no unqualified right” to marriage, and same-sex couples can’t claim it as a fundamental right under the Constitution.
The majority opinion was delivered by Justices Bhat, Kohli and Narasimha, with the latter delivering a separate but concurring opinion. While CJI Chandrachud and Justice Kaul delivered separate dissenting judgments.
While majority opinion rendered by Justice Ravindra Bhat said that there is no unqualified right to marriage. Entitlement to civil unions can be only through enacted laws and courts cannot enjoin such creation of a regulatory framework.
Talking about the rights of queer persons, the Supreme Court said that queer persons are not prohibited in celebrating their love for each other, but have no right to claim recognition of such union. Queer persons have the right to choose their own partner and they must be protected to enjoy such rights.
However the Justice Ravindra Bhat said that same-sex couples do not have right to adopt children under existing law. Central government shall set up a high-powered committee to undertake study of all relevant factors associated with same-sex marriage. Transgender persons have the right to marry.
However, the Supreme Court in its minority opinion held that queer couples have a right to enter into civil unions, though they do not have the right to marry under the existing laws. In the minority judgement, CJI Chandrachud’s said that Queerness is not urban or elite. There is no universal concept of marriage. Marriage has attained the status of a legal institution due to regulations. The Constitution does not grant a fundamental right to marry and the institution cannot be elevated to the status of a fundamental right.
He said in the order that Court cannot strike down provisions of the Special Marriage Act. It is for Parliament to decide the legal validity of same-sex marriage. Courts must steer clear of policy matters. Freedom of queer community to enter into unions is guaranteed under the Constitution. Denial of their rights is a denial of fundamental rights. Right to enter into unions cannot be based on sexual orientation. Transgender persons have the right to marry under existing law.
Giving details, the CJI Chandrachud said that queer couples have the right to jointly adopt a child. Regulation 5(3) of the Adoption Regulations as framed by the Central Adoption Resource Authority (CARA) is violative of Article 15 of the Constitution for discriminating against the queer community. Centre, states, union territories shall not bar queer people from entering into unions to avail benefits of the state, he further said.
Highlights of four judgments
Some of the main points highlighted by the Chief Justice of India while concluding his order.
(1) Unmarried couples (including queer couples) can jointly adopt a child. Regulation 5(3) of the Adoption Regulations is ultra vires the JJ Act, PART G 245 Articles 14, and 15. Regulation 5(3) is read down to exclude the word “marital”. The reference to a ‘couple’ in Regulation 5 includes both married and unmarried couples as well as queer couples. The principle in Regulation 5(2)(a) that the consent of spouses in a marriage must be obtained if they wish to adopt a child together is equally applicable to unmarried couples who seek to jointly adopt a child. However, while framing regulations, the state may impose conditions which will subserve the best interest and welfare of the child in terms of the exposition in the judgment;
(2) The Union Government, State Governments, and Governments of Union Territories shall not discriminate against the freedom of queer persons to enter into union with benefits under law
(3) We record the assurance of the Solicitor General that the Union Government will constitute a Committee chaired by the Cabinet Secretary for the purpose of defining and elucidating the scope of the entitlements of queer couples who are in unions. The Committee shall include experts with domain knowledge and experience in dealing with the social, psychological, and emotional needs of persons belonging to the queer community as well as members of the queer community. The Committee shall before finalizing its decisions conduct wide stakeholder consultation amongst persons belonging to the queer community, including persons belonging to marginalized groups and with the governments of the States and Union Territories.
(4) The Committee shall in terms of the exposition in this judgment consider the following: i. Enabling partners in a queer relationship (i) to be treated as a part of the same family for the purposes of a ration card; and (ii) to have the facility of a joint bank account with the option to name the partner as a nominee, in case of death;
(5) In terms of the decision in Common Cause v. Union of India288, as modified by Common Cause v. Union of India289, medical practitioners have a duty to consult family or next of kin or next friend, in the event patients who are terminally ill have not executed an Advance Directive. Parties in a union may be considered ‘family’ for this purpose;
(6) Jail visitation rights and the right to access the body of the deceased partner and arrange the last rites; and
(7) Legal consequences such as succession rights, maintenance, financial benefits such as under the Income Tax Act 1961, rights flowing from employment such as gratuity and family pension and insurance.
(8) The report of the Committee chaired by the Cabinet Secretary shall be implemented at the administrative level by the Union Government and the governments of the States and Union Territories.
Conclusion of Supreme Court judge, justice Sanjay Kishan Kaul, highlighted in the order
Supreme Court judge, justice Sanjay Kishan Kaul, while concluding his order said that “ Is this the end where we have arrived? The answer must be an emphatic ‘no’. Legal recognition of non-heterosexual unions represents a step forward towards marriage equality. At the same time, marriage is not an end in itself. Our Constitution contemplates a holistic understanding of equality, which applies to all spheres of life. The practice of equality necessitates acceptance and protection of individual choices. The capacity of non-heterosexual couples for love, commitment and responsibility is no less worthy of regard than heterosexual couples. Let us preserve this autonomy, so long as it does not infringe on the rights of others. After all, “it’s my life.”
Some of the observations made by Supreme Court judges
Justice S.Ravindra Bhat and justice Hima Kohli
- This Court’s observations with respect to the learned Chief Justice’s reasoning centered around the enunciation of the bouquet of rights emanating from various provisions other than Article 21 [Article 19 and 25], and locating an obligation, has to be seen in the backdrop of the unanimous view of this Court, that the fundamental right to marry is not found within the Constitution. Therefore, it is our considered opinion that to create an overarching obligation upon the State to facilitate through policies the fuller enjoyment of rights under Article 19 and 25, is not rooted in any past decision, or jurisprudence. That queer couples have the right to exercise their choice, cohabit and live without disturbance – is incontestable. In the same vein, that they are owed protection against any threat or coercion to their life, is a positive obligation that binds the State– this is a natural corollary of their right under Article 21.
(2)Consider in this context, also the nature of the relief sought, and the positive obligation fashioned. While there are innumerable judgments on the positive content of rights under Article 21, there are also countless judgments that insist upon the separation of powers, when it comes to matters of policy, and the 83 courts not being the appropriate forum for the adjudication of the same. The polycentric nature of the issue, is compelling.
Supreme Court judge Justice P S Narasimha judgment highlights
The learned Chief Justice locates components of this right to union or an abiding cohabitational relationship under Article 19(1)(a), Article 19(1)(c), Article 19(1)(e), Article 21 and Article 25 of the Constitution. In my opinion, it would not be constitutionally permissible to identify a right to a union or an abiding cohabitational relationship mirroring the institution of marriage. The learned Chief Justice identifies ‘tangible’ and ‘intangible’ benefits (bouquet of entitlements) that arise from state recognition and regulation of marriages. The Chief Justice further opines that the right to marriage is not fundamental. However, it is these very tangible and intangible benefits, the denial of which, according to the learned Chief Justice must inform the reading of a constitutional right to an abiding cohabitational union. In other words, the benefits of marriage, however fundamental to a fulfilling life do not make marriage itself a fundamental right, but they render the right to an abiding cohabitational union fundamental. I find it difficult to reconcile these.