New Delhi:

Chief Justices have been in the minority in 13 significant judgments, Chief Justice of India DY Chandrachud has said, standing by his recent ruling in the marriage equality case. He was speaking yesterday at the 3rd Comparative Constitutional Law discussion on ‘Perspectives from the Supreme Courts of India and the United States’, hosted by Georgetown University in Washington, DC

“I do believe it is sometimes a vote of conscience and a vote of the Constitution. And I stand by what I said,” the Chief Justice said on the Supreme Court’s October 17 judgment in which it stopped short of legalising same-sex marriages.

All the judges on the five-member Constitution bench agreed that tweaking laws to bring about marriage equality would amount to encroaching into the legislature’s domain. There was, however, a difference of opinion on the question of the right to civil union and adoption rights. Chief Justice Chandrachud and Justice SK Kaul were in favour of recognising same-sex unions. The majority of the bench took a different view, with Justice S Ravindra Bhat saying he disagreed with the court directing the State to provide for a new legal framework to formalise such relationships.

The Chief Justice also stood by the Supreme Court’s judgment of leaving the decision on marriage equality to Parliament.

“By the unanimous verdict of all the five judges on the bench, we came to the conclusion that while we have progressed a great deal in terms of decriminalising homosexuality and recognising people belonging to the queer community as equal participants in our society, legislating on the right to marry is something that falls within the domain of Parliament,” the Chief Justice said.

In his judgment in the closely-watched case, the Chief Justice had said choosing a life partner is an integral part of choosing one’s course of life. “Some may regard this as the most important decision of their life. This right goes to the root of the right to life and liberty under Article 21,” he said.

“The right to enter into union includes the right to choose one’s partner and the right to recognition of that union. A failure to recognise such associations will result in discrimination against queer couples,” the Chief Justice said, adding, “the right to enter into union cannot be restricted on the basis of sexual orientation”.

Supporting adoption rights for queer couples, he said there is nothing to probe that only heterosexual couples can provide stability to a child. “There is no material on record to prove that only a married heterosexual couple can provide stability to a child,” he said.

New Delhi:

On the surface, the Supreme Court’s decision to not legalise same-sex marriages or extend adoption rights to queer couples may appear disappointing, but read between the lines, and there is much to cheer about. Petitioners in the case, too, have noted the many points made by the judges in the favour of the queer community.

What’s Good

The five-judge bench’s refusal to legalise same-sex marriages is based not on an in-principle opposition to marriage equality, but on legal technicalities and concerns of judicial legislation.

All the judges agreed the queer couples are neither urban nor elitist, countering an argument of the centre during the hearing in the case.

The judges also noted the centre’s submission that a panel headed by the cabinet secretary will look into practical difficulties faced by same-sex couples. The bench agreed that difficulties faced by queer couples in accessing basic services are discriminatory in nature and said the government panel must look into them.

What Do Petitioners Say

Responding to the judgment, Geeta Luthra, senior advocate and counsel for several petitioners in the case, told news agency ANI, “Even if the right to marriage has not been given, CJI has said that the same bundle of rights which every married couple has should be available to same-sex couples.”

LGBTQIA+ rights activist Harish Iyer, one of the petitioners, also noted the observations in favour of the queer community. “Though at the end, the verdict was not in our favour but, so many observations made were in our favour. They have also put the responsibility on the central government. The Solicitor General said so many things against us, so it is important for us to go to our elected government, MPs and MLAs and tell them we are as different as two people. War is underway… it might take sometime but we will get societal equality,” ANI quoted him as saying.

Anjali Gopalan, petitioner and activist, said they “have been fighting for long and will keep doing so”. “Regarding adoption also nothing was done, what the CJI said was very good regarding adoption, but it’s disappointing that other justices didn’t agree… This is democracy but we are denying basic rights to our own citizens,” she told ANI.

Concerns Of Delay

The centre had in May submitted that it plans to set up a panel headed by the cabinet secretary to look into practical issues faced by same-sex couples in accessing services such as Provident Fund and pension. Following that submission, there has been no update on whether this panel met and held discussions over the issue.

Rights of same-sex couples are not an election issue, but any move on this matter can have significant political ramifications. Also, any step towards legalising same-sex marriages is bound to face resistance from within the society, including religious organisations.

With the country gearing up for a general election next year, same-sex couples and their rights may not feature high on the government’s priority list, especially considering the political impact any such move may have.

Key Observations Today

Chief Justice of India DY Chandrachud stressed that an individual’s right to enter into a union cannot be restricted on the basis of sexual orientation.

The Chief Justice, however, underlined that the court must be careful to not enter the legislative domain, and said it is for Parliament to decide if changes are needed in the Special Marriage Act.

The petitioners had challenged the constitutionality of some provisions of Hindu Marriage Act, Foreign Marriage Act, Special Marriage Act and other marriage laws on the grounds that they deny same-sex couples the right to marry. They had requested the court to read these provisions broadly to include same-sex marriage. The court had earlier clarified that it will not go into personal laws and only look at Special Marriage Act. 

The Chief Justice backed same-sex couples’ right to adopt children, a stand opposed by the majority of judges on the bench. 

“Law cannot assume that only heterosexual couples can be good parents. This would amount to discrimination,” he said, questioning the current norms that bar queer couples from adopting children.

The Chief Justice also listed several directions for the centre and state government, asking them to ensure queer couples are not discriminated against and to spread awareness about queer rights, among others.

Agreeing with the Chief Justice, Justice SK Kaul said non-heterosexual unions and heterosexual unions “must be seen as both sides of the same coin”. He also said this is an opportunity to “remedy historical injustice” and grant recognition to such unions.

Reading out the majority judgment that differed with Chief Justice Chandrachud and Justice Kaul on the question of adoption, Justice S Ravindra Bhat agreed with the Chief Justice that “queerness is neither urban nor elitist”. However, he said there are difficulties in creating through a judicial diktat a right to civil union.

The court cannot create a legal framework for queer couples and it is for the legislature to do as there are several aspects to be taken into consideration, he added.

Ruling out any tweak in the Special Marriage Act, he said, “A gender neutral interpretation of the Special Marriage Act may not be equitable at times and can result in women being exposed to vulnerabilities in an unintended manner.” The judge agreed that denial of benefits such as Provident Fund, pension etc to queer partners may have an “adverse discriminatory effect”.

Opposing the minority judgment on the issue of extending adoption rights to same-sex couples, Justice Bhat said, “This is not to say that unmarried or non-heterosexual couples can’t be good parents… given the objective of section 57, the State as parens patriae has to explore all areas and to ensure all benefits reach the children at large in need of stable homes.”

Justice PS Narasimha, who agreed with Justice Bhat, said a review of legislative schemes that excludes same-sex partners from pension, PF, gratuity and insurance benefits was needed.