Same-sex marriage will have to wait

The bench recognised equal rights for queer people and their protection, and called for sensitisation of the public to ensure they are not discriminated against.

All the judges agreed on the point of tasking the committee, to be constituted under the Cabinet Secretary as promised by the Centre, for the purpose of defining and elucidating the scope of the entitlements of queer couples.

Justices Bhat and Kohli differed with some of the directions in the CJI’s ruling and also some of his conclusions.

Justice Kaul said he was “broadly agreeing” with the CJI judgment – the rulings by the CJI and Justice Kaul ended up being the minority view.

Justice Narasimha said he was “unable to agree with the opinion of the Chief Justice and Justice Kaul” and was “in complete agreement with the reasoning given and conclusions arrived at by Justice Bhat”.

The bench was unanimous that marriage is a statutory right and not a fundamental right guaranteed by the Constitution and, hence, a subject matter for the Parliament and state legislatures.

“This Court cannot either strike down the Constitutional validity of SMA or read words into the SMA because of its institutional limitations. This Court cannot read words into the provisions of the SMA and provisions of other allied laws such as the ISA (Indian Succession Act) and the HSA (Hindu Succession Act) because that would amount to judicial legislation. The Court, in the exercise of the power of judicial review, must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain,” the CJI said, a view that other judges agreed with.

In the four separate judgments – by the CJI, Justice Kaul, Justice Bhat and Justice Narasimha – there was agreement in the bench that “queerness is a natural phenomenon” and “is not urban or elite”, that “there exists no fundamental right to marry under the Constitution… that the Special Marriage Act, 1954 (SMA), is neither unconstitutional nor can it be interpreted in such a manner so as to enable marriage between queer persons; and that… transgender persons in heterosexual relationships, have the right to solemnize marriage under existing legal frameworks”.

Explaining why the right to marry is not a fundamental right, CJI Chandrachud wrote that “in pursuance of the power conferred by Articles 245 and 246 read with Entry 5 of the Concurrent List, Parliament has enacted laws creating and regulating the socio-legal institution of marriage. The State legislatures have made amendments to such laws with the assent of the President since the subject of marriage is in the Concurrent List. The petitioners seek that the Court recognise the right to marry as a fundamental right. As explained above, this would mean that even if Parliament and the State legislatures have not created an institution of marriage in exercise of their powers under Entry 5 of the Concurrent List, they would be obligated to create an institution because of the positive postulate encompassed in the right to marry. This argument cannot be accepted.”

Though it concluded that there is no fundamental right to marry, the CJI’s ruling said “there is a right or freedom to enter into a union” as laid down in various judgments of the court – Navtej Johar, K S Puttaswamy, NALSA, Shakti Vahini, Shafin Jahan etc – “and that having regard to our constitutional values, which entail respect to the choice of a person whether or when to enter into marriage and the right to choose a marital partner”.

The three judges, who formed the majority view, called this the “right to relationship”.

Justice Bhat said, “While we agree that there is a right – which we will characterise as a ‘right to relationship’ to avoid confusion – we squarely recognise it to fall within Article 21, as already recognised in the aforecited cases. The right to relationship here includes the right to choose a partner, cohabit and enjoy physical intimacy with them, to live the way they wish to, and other rights that flow from the right to privacy, autonomy and dignity. They are, like all citizens, entitled to live freely, and express this choice, undisturbed in society. Whenever their right to enjoyment of such a relationship is under threat of violence, the State is bound to extend necessary protection.”

The CJI ruling said that this right to civil union or right to enter into an abiding cohabitational relationship can be traced to Part III of the Constitution, and thus places a positive obligation on the State to accord recognition to it. But Justices Bhat, Kohli and Narasimha did not agree.

Justice Narasimha wrote that “it would not be constitutionally permissible to identify a right to a union or an abiding cohabitational relationship mirroring the institution of marriage”.

Justice Bhat said, “It is reiterated that all queer persons have the right to relationship and choice of partner, cohabit and live together, as an integral part of choice, which is linked to their privacy and dignity. Any further discussion on the rights which consenting partners may exercise, is unnecessary.”

Another point of disagreement between the CJI ruling and that of Justices Bhat, Kohli and Narasimha was on the right of queer couples to adopt.

The CJI ruling said while the Juvenile Justice (Care and Protection) Act allows a single woman to adopt, Section 5(3) the Central Adoption Resource Authority (CARA) guidelines, issued under the JJ Act, lays down that only married couples can adopt.

This provision, the CJI ruling said “though facially neutral, indirectly discriminates against atypical unions (such as the relationship between non-heterosexual partners) which have not been recognised by the State. Queer marriages have not been recognised by the State and queer persons in atypical unions cannot yet enter into a marriage which is recognised by the State”.

“This exclusion has the effect of reinforcing the disadvantage already faced by the queer community… 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,” it said, holding the provision “ultra vires the parent Act (JJ Act) for exceeding the scope of delegation and for violating Articles 14 and 15 of the Constitution”.

Justice Bhat’s ruling, however, said “they “are unable to concur”.

It said that if the CJI’s view is to be adopted, it “would have disastrous outcomes because the ecosystem of law, as it exists, would be unable to guarantee protection to the said child in the case of breakdown of an unmarried couple, adopting jointly. This, therefore, would not be in the best interest of the child”.

“This is not to say that unmarried couples – whether queer or heterosexual – are not capable or suitable to be adoptive parents. However, once the law permits, as it has done – adoption by both single individuals, the likelihood of their joining and cohabiting cannot be ruled out. In such an event, de facto family units can and do come about. The underlying assumption in the law, as it exists, that such unmarried heterosexual or queer couples should not adopt needs to be closely examined. Similarly, the need of such couples to have and raise a family in every sense of the term, has to be accommodated within the framework of the law, subject to the best interests of the child. The existing state of affairs which permits single individuals to adopt, and later to live as a couple in due exercise of their choice, in effect deprives the children of such relationships various legal and social benefits, which are otherwise available to children of a married couple,” the majority ruling held.

Reacting to the verdict, Solicitor General Tushar Mehta, who represented the Centre, said, “I wholeheartedly welcome the judgment. I am happy that my stand is accepted. All four judgments have taken the jurisprudence of our nation and the intellectual exercise which went into writing the judgements to a next level. There are very few courts in the world where one can expect this level of intellectual and scholarly judicial exercise. This judgment would be read across jurisdictions. Today’s judgment balances the interests of individuals with the interests of a civilized society.”

“It is an important step in jurisprudential development on the question of separation of powers and provides vivid and eloquent insights into the working of the Parliament, the Executive and the Judiciary which function complementing each other strictly as per the Constitution,” Mehta said.