The Supreme Court today stopped short of legalizing marriage equality, but emphasized that an individual’s right to enter into a union cannot be limited on the basis of sexual orientation. The five-judge court issued four rulings, differing mainly on the issue of adoption rights for queer couples.
The judges asked the Center to go ahead with the formation of a committee to address practical issues faced by same-sex couples such as obtaining ration cards, pension, gratuity and succession issues.
The Center had on May 3 told the court that it plans to form a committee headed by a cabinet secretary to explore administrative solutions to the problems faced by same-sex couples, without delving into the issue of equality of marriage.
The court issued a 3-2 ruling on the issue of adoption rights. Chief Justice of India DY Chandrachud and Justice SK Kaul recognized the right of queer couples to adopt, while Justice S Ravindra Bhat, Justice PS Narasimha and Justice Hima Kohli dissented.
“There is a certain amount of agreement and a certain amount of disagreement about how far we should go. I have dealt with the issue of judicial review and separation of powers,” Justice Chandrachud said.
Choosing a life partner is an integral part of choosing one’s path in life, the Chief Justice said. “Some may consider this the most important decision of their lives. This right goes to the root of the right to life and liberty under Article 21,” he said.
“The right to enter into a commitment includes the right to choose your partner and the right to have that commitment recognized. Failure to recognize such associations will result in discrimination against queer couples,” the Chief Justice said, adding: “the right to enter into a union cannot be limited on the basis of sexual orientation”.
Disagreeing with the center’s argument that marriage equality is an urban, elitist concept, the chief justice said: “Queerness is not an urban elite. Homosexuality or queerness is not an urban concept or limited to the upper classes of the society.”
He supports adoption rights for queer couples and says there is no evidence that only heterosexual couples can provide stability to a child. “There is no material available to prove that only a married heterosexual couple can provide stability to a child,” he said, adding that the Central Adoption Resource Authority has “exceeded its authority” by banning adoption by same-sex couples.
Justice Kaul agreed with the Chief Justice that there is a need for an anti-discrimination law.
“Same-sex relationships have been recognized since ancient times, not only for sexual activities, but also as relationships for emotional fulfillment. I have referred to certain Sufi traditions. I agree with the judgment of the Chief Justice. It is not res integra for a constitutional court to defend rights and the court has been guided by constitutional morality and not by social morality. These unions must be recognized as a union that gives partnership and love,” he said.
Justice Bhat agreed that queerness is “neither urban nor elitist,” but added that he disagreed with the chief justice’s directions.
“The Chief Justice’s judgment proposed a theory of a unified thread of rights and how lack of recognition violates rights. However, where the law is silent, Article 19(1)(a) does not compel the state to enact a law facilitating that expression,” he said.
Justice Bhat said the court cannot create a legal framework for queer couples and it is up to the legislature to do so as several aspects need to be taken into consideration.
On adoption, Justice Bhat said they disagree with the Chief Justice on the right of gay couples to adopt. “We express certain concerns. This is not to say that unmarried or non-heterosexual couples cannot be good parents…given the objective of section 57, the state as parens patriae must explore all areas and ensure that all benefits are achieved. the children in general need stable homes.”
Earlier, the Chief Justice disagreed with Justice Bhat’s approach. “My learned brother acknowledges the discrimination against queer couples but gives no guidance. I cannot accept such an approach.”
The judges agreed that the court should not attempt to amend the Special Marriage Act as this would amount to encroaching on the domain of the legislature.
“The court cannot strike down the Special Marriage Act or read words into the law due to institutional constraints. The court cannot read words into related laws like the Succession Act as this would amount to legislation,” the Chief Justice said.
Judge Kaul agreed. “I have said that the Special Marriage Act violates Article 14. But there are interpretive limitations in including homosexual unions. As rightly pointed out by the Advocate General, tinkering with the Special Marriage Act could have a cascading effect, ” he said.
