A five-judge Constitution bench headed by Chief Justice of India (CJI) DY Chandrachud ruled against granting marriage equality to LGBTQIA+ persons on Tuesday, October 17, stating that it was up to the Parliament to make law. The bench also comprised Justices Hima Kohli, Sanjay Kishan Kaul, S Ravindra Bhat, and PS Narasimha. While the CJI and Justice Kaul recognised that queer couples can form “civil unions” and have the right to adopt, the other three judges disagreed. The court was pronouncing judgement in a batch of pleas that challenged the provisions of certain statutes, including the Special Marriage Act 1954 (SMA), the Hindu Marriage Act 1955 (HMA), and the Foreign Marriage Act 1969 (FMA). The key argument put forth by the petitioners was that the right to marriage devolves into several other rights, privileges, and obligations.
Even though all four judgements categorically refused the right to marriage for LGBTQIA+ individuals, the judgements reiterated the rights of queer individuals and passed the buck to the Parliament to enact a law. Here are the key observations made by CJI Chandrachud (in his 247-pages-long judgement) and Justice Kaul (in his 17-pages-long judgement) in their concurring judgements.
Directions to the State by the CJI
The Chief Justice observed that despite decriminalisation of consensual queer relationships by the SC in 2018 (Navtej Singh Johar vs Union of India), members of the queer community are still subjected to violence and oppression. He said, “The State (which has the responsibility to identify and end the various forms of discrimination faced by the queer community) has done little to emancipate the community from the shackles of oppression,” adding that it was because of the lack of sensitisation. He further stated that “the stigma against the members of the LGBTQIA+ community did not end with a stroke of the pen when this court decriminalised consensual homosexual sexual activity,” and stressed on the fact that public spaces, including washroom facilities, ticket counters at railway stations and bus depots, as well as places of education and employment, are not easily accessible for queer individuals.
The CJI directed the Union and state governments, and Union Territories to:
> Ensure that there is no discrimination against queer community because of their gender identity or sexual orientation.
> Ensure that there is no discrimination in access to goods and services against the queer community.
> Take steps to sensitise the public about queer identities, including the fact that it is not a mental disorder.
> Establish hotline numbers that the queer community can contact when they face harassment and violence in any form.
> Establish and publicise the availability of ‘safe houses’ or Garima Grehs in all districts to provide shelter to members of the queer community who are facing violence or discrimination.
> Ensure that ‘treatments’ offered by doctors or other persons – ‘conversion therapies’ – that aim to change gender identity or sexual orientation are ceased with immediate effect.
> Ensure that intersex children are not forced to undergo non-consensual sex-selective surgeries at a young age.
Read: Biological sex is not a binary: Breaking the myth that affects intersex lives
> Recognise the self-identified gender of all persons, and no person should be forced to undergo hormonal therapy or any other medical procedure as a condition or prerequisite to grant legal recognition to their gender identity or otherwise.
> The appropriate government under the Mental Healthcare Act must formulate modules covering the mental health of queer persons in their programmes, and programmes to reduce suicides and attempted suicides must include provisions that address queer identity.
Committee under Cabinet Secretary should include community members
Recording the earlier assurance of Solicitor General (SG) Tushar Mehta that the Union government will constitute a committee chaired by the Cabinet Secretary to decide the scope of the entitlements of queer couples, the court said the committee should include experts with domain knowledge and dealing with the social, psychological, and emotional needs of persons belonging to the queer community, as well as members of the community. The court also directed that the committee should conduct wider stakeholder consultations among the community members, including persons belonging to marginalised groups, as well as states and UTs, before finalising its decisions. The report of the committee is to be implemented by the Union government and the governments of the states and UTs.
The committee is directed to consider the following aspects:
> Treating partners in a queer relationship as part of the same family for the purposes of a ration card; and to have the facility of a joint bank account with the option to name the partner as a nominee.
> The partner of a person in the union shall be considered as ‘family’ for medical practitioners to consult, in the event of patients who are terminally ill.
> Jail visitation rights and the right to access the body of the deceased partner and arrange last rites.
> Legal rights such as those concerning succession, maintenance, financial benefits such as under the Income Tax Act, rights flowing from employment such as gratuity and family pension, and insurance.
SC can hear the marriage equality case, but cannot enter legislative domain
The Union government had argued that the Supreme Court should not decide on the question of marriage equality to LGBTQIA+ individuals and that it would preempt any debate in the legislature. Recalling this, the CJI said that Article 32 (Remedies for enforcement of rights) has granted the power to SC to issue directions, orders, or writs for the enforcement of fundamental rights listed under Part III, and so the court is vested with the authority to hear this case.
Further, responding to the Union government’s argument that the SC will violate doctrine of separation of powers, he observed that the said doctrine does not operate as a bar against judicial review. However, the CJI said that in the exercise of the power of judicial review, the court does not design legislative policy or enter upon the legislative domain. “This court will not enter into the legislative domain by issuing directions, which for all intents and purposes would amount to enacting law or framing policy,” he said.
‘Queerness is not urban or elitist’
The CJI said that the Union government’s argument that “homosexuality or gender queerness is not native to India” does not hold water. “In India, persons with a gender queer identity who do not fit into the binary of ‘male’ and ‘female’ have long been known by different names including hijras, kothis, aravanis, jogappas, thirunambis, nupa maanbas, and nupi maanbis,” he said.
He also dissented with the contention of the Union government that LGBTQIA+ identities predominantly present among the urban elite and that it is largely unknown to rural India and amongst the working classes. Citing several cases highlighted by the petitioners, he observed that “queerness is neither urban nor elite”.
“People may be queer regardless of whether they are from villages, small towns, or semiurban and urban spaces. Similarly, they may be queer regardless of their caste and economic location. It is not just the English-speaking man with a white-collar job who lives in a metropolitan city and is otherwise affluent who can lay claim to being queer, but also (and equally) the woman who works in a farm in an agricultural community,” he said.
The CJI further added that stating that LGBTQIA+ individuals are privileged and exist only in urban areas amounts to “erasing” their existence in other parts. “To imagine queer persons as existing only in urban and affluent spaces is to erase them even as they exist in other parts of the country. It would also be a mistake to conflate the ‘urban’ with the ‘elite.’ This renders invisible large segments of the population who live in urban spaces but are poor or otherwise marginalised. Urban centres are themselves geographically and socially divided along the lines of class, religion, and caste and not all those who live in cities can be termed elite merely by virtue of their residence in cities,” he added. He concluded that “queerness is not urban or elite” and that persons from any geographic location or background may be queer.
Justice SK Kaul, in his concurring judgement, noted that it is a misconceived claim that ‘non-heterosexual unions’ are only a facet of the modern social milieu, and added that the unions of queer couples are entitled to protection under the Constitution.
‘Reassertion of queer identities’
CJI Chandrachud observed that even though there was violence inflicted on LGBTQIA+ people in the pre-colonial times and ‘queerness’ did not receive the wide acceptance that heteronormativity did, there are stories, histories, myths, and cultural practices that indicate their presence. However, he said, the diverse life in India gradually changed with the entry of the British, who brought with them their own sense of morality and laws.
“The criminalisation of the LGBTQ community and their resultant prosecution and conviction under these laws, coupled with the violence enabled by these laws, drove large sections of the community underground and into the proverbial closet. Their presence in the public sphere gradually shrunk even as homophobia and transphobia flourished,” he said. Queerness is not of foreign origin, but the “shades of prejudice” in India are remnants of a colonial past, the CJI noted.
He also observed that the recent visibility of queerness is not an assertion of an entirely novel identity but the “reassertion of an age-old one”. He also said that “concomitant nurturing of democratic systems and values over six decades” has enabled more queer persons to exercise their inherent rights. “An environment has been fostered that is conducive to queer persons expressing themselves without the fear of opprobrium. This court also recognises that queer persons have themselves been crucial in the project of fostering such an environment,” he added.
‘Concept of marriage is not static’
The CJI began the delivery of his judgement by saying that there is no universal definition of marriage. Stating that marriage is a voluntary union, he said that the “sole purpose of marriage is not to facilitate sexual relations or procreation”. Further, he said that even heterosexual couples may find themselves “unable or unwilling to procreate” and that the inability of queer couples to procreate does not act as a barrier to the entry of queer persons to the institution of marriage. He also said that the perceiving marriage solely through the lens of sexual relations or procreation is narrow and factually incorrect.
Listing some of the key social, cultural, and legal changes that marriage underwent in India, including the abolition of sati, widow remarriage, age of consent for marriage, and inter-faith marriages, CJI Chandrachud said that these changes show that the institution of marriage has not remained static or stagnant. “Marriage has metamorphosed … Despite vehement opposition to any departure from practice, the institution of marriage has changed,” he said, adding that these changes were brought about largely by Acts of Parliament or the legislatures of the states.
During the hearings, the Union government had acknowledged that LGBTQIA+ individuals do have the rights and liberty to celebrate their union and label the union with any term they see fit, including ‘marriage’. Yet, the government did not wish to accord legal recognition to such unions. Referring to this, the CJI said, “If the marriages of queer people were to be recognized by law enacted by Parliament, it would be the next step in its progression.”
Read: SC says it has ‘limited institutional capacity’ to read down Special Marriage Act
‘Marriage is not a fundamental right’
Justice Chandrachud said that the court has previously issued orders for the enforcement of fundamental rights under Article 32. He said that the Article not only allows the judiciary to strike down an offending legislation but also to issue substantive directions to give effect to fundamental rights. “It falls squarely within the powers of this court to adjudicate whether the fundamental rights of queer persons have been infringed, as claimed by the petitioners. This court will not issue a mandamus to Parliament, but will determine the scope and effect of certain fundamental rights,” he stated.
He referred to the previous judgements cited by the petitioners to contend that they have the fundamental right to marry, and held that the judgements did not agree that the Constitution guaranteed the right to marry. However, he said that while
marriage is not fundamental in itself, it may have attained significance because of
the benefits that are realised through regulation of marriage.
He further said that while the Constitution did not expressly recognise a fundamental right to marry, many of the Constitutional values, including the right to life and personal liberty, may be comprehended through the material benefits of a marital relationship. The Chief Justice also noted that the non-recognition of non-heterosexual marriages denies the petitioners the social and material benefits that flow from marriage.
‘Freedom to enter into unions’
Both CJI Chandrachud and Justice Kaul concurred that there was a need to recognise civil unions of LGBTQIA+ individuals, to ensure that they get the material benefits of marriages. “It is insufficient if persons have the ability and freedom to form relationships unregulated by the State. For the full enjoyment of such relationships, it is necessary that the State accord recognition to such relationships. Thus, the right to enter into a union includes the right to associate with a partner of one’s choice, according recognition to the association, and ensuring that there is no denial of access to basic goods and services,” he said.
Stating that the right to union of two individuals cannot be discriminated against on the basis of sexual orientation, the CJI also said that the material and expressive entitlements that flow from a marriage must be available to couples in queer unions. The court also refuted the idea of the Union government that if non-heterosexual couples are permitted to enter into a union, then the State will also have to extend the right to incestuous, polygamous, or polyandrous relationships, saying that this apprehension is “unfounded” when tested on constitutional principles.
The freedom to choose a partner and freedom to enjoy their society are essential components of the right to enter into a union, the CJI noted. He said that the rights would serve no purpose if the relationship were to be discriminated against. “For the right to have real meaning, the State must recognise a bouquet of entitlements which flow from an abiding relationship of this kind. A failure to recognise such entitlements would result in systemic discrimination against queer couples,” he said. Further, recalling that the SG had stated that a committee chaired by the Cabinet Secretary will be constituted to set out the rights which will be available to queer couples in unions, the Chief Justice said that this Committee shall set out the scope of the benefits which accrue to such couples.
Justice Kaul said that non-heterosexual unions and heterosexual unions/marriages should be “considered as two sides of the same coin” in terms of recognition as well as consequential benefits. He said that the only deficiency at present is the absence of a suitable regulatory framework for such unions. Quoting the 2018 judgement in Navtej Johar vs Union of India that “history owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries,” he said, “I believe that this moment presents an opportunity of reckoning with this historical injustice and casts a collective duty upon all constitutional institutions to take affirmative steps to remedy the discrimination.”
“Thus, the next step in due course, would be to create an edifice of governance that would give meaningful realisation to the right to enter into a union, whether termed as marriage or a union,” he said.
He also observed that legal recognition of non-heterosexual unions can challenge culturally ordained gender roles in heterosexual relationships. “One’s status as husband or wife determines their duties and obligations towards each other, their family, and society. Marriage enforces and reinforces the linkage of gender with power by husband/wife categories, which are synonymous with social power imbalances between men and women. Non-heterosexual unions can make an important contribution towards dismantling this imbalance while emphasising alternative norms,” he added. He also said that legal recognition of civil unions of queer couples would be a step forward towards marriage equality. However, this minority view of the two judges was opposed by the other three judges.
Read: SC reiterates validity of trans heterosexual weddings, no guidelines laid
Right of queer persons under the Mental Healthcare Act
Justice Chandrachud observed that the biological family of a person is often the “first site of violence and oppression” for the queer community. “It begins with family members rejecting the gender identities of their transgender children or consenting to “gender normalising surgeries” for their intersex children without giving the child an opportunity to choose for themselves. Families also consider a queer person’s desire of gender expression to be a mental illness that requires cure,” he said. He also observed that families and relatives of queer persons compel them to undergo “conversion therapies” or force them into marriages with persons of the opposite sex to “cure” their homosexuality.
The CJI reiterated that such pseudo-scientific practices violate the right to health of queer persons and also their right to autonomy and dignity. “‘Conversion therapies’ and other ‘treatments’, which are aimed at altering sexual orientation, amount to cruel, inhuman, and degrading treatment of queer persons. They have the effect of denying their full humanity. [Their] mental well-being suffers to no end because cruel techniques are used in these so-called treatments. The treatment is by its very nature cruel. It is the duty of the State to ensure that these inhumane practices do not continue,” he observed.
Adoption rights of queer couples
The Chief Justice also observed that a legislation must be in accordance with the parent act. In the matter of adoption, the Central Adoption Resource Authority (CARA), which comes under the Juvenile Justice (JJ) Act has passed regulations, one of which – Regulation 5(3) – precludes unmarried couples from adopting, while the JJ Act does not do so. “Though [the] JJ Act grants CARA the power to prescribe additional criteria, the criteria must not exceed the scope of the legislative policy,” he said, adding that CARA has exceeded its authority.
He also criticised CARA for assuming that only married heterosexual couples can provide a “stable” household for children. “Although married couples may provide a stable environment, it is not true that all couples who are married will automatically be able to provide a stable home. Similarly, unmarried relationships cannot be characterised as fleeting relationships that are unstable by their very nature. Marriage is not necessarily the bedrock on which families and households are built. While this is the traditional understanding of a family, we have already elucidated above that this social understanding of a family unit cannot be used to deny the right of other couples who are in domestic partnerships or live-in relationships to found a family,” he observed.
Noting that there is “no single form of a stable household”, he said that unmarried queer couples should not be discriminated against on the basis of their sexual orientation. He also added that children of queer individuals suffer because of the lack of recognition to same-sex unions, and added that the law cannot make an assumption about good and bad parenting based on the sexuality of individuals. “Such an assumption perpetuates a stereotype based on sexuality (that only heterosexuals are good parents and all other parents are bad parents) which is prohibited by Article 15 of the Constitution,” he said.
The CJI ruled that the Adoption Regulation is violative of Article 15. He held that Regulation 5(3) should be read down to exclude the word “marital” and the reference to a ‘couple’ in CARA’s Regulation 5 should include both married and unmarried couples including queer couples. While Justice Kaul concurred with this judgement, the other three judges dissented.
Read: CJI Chandrachud supports adoption for queer and unmarried couples