Till law do us part

From disagreeing to 'read-in' inclusivity into the Special Marriage Act to 'ruling out' same-sex marriage, the Supreme Court’s judgement is a significant setback for LGBTQ+ rights, writes Kanav Narayan Sahgal.

In a historic case, the Supreme Court of India eventually ruled against the legal recognition of same-sex marriage, civil unions, and adoption rights for the LGBTQ+ community. The bench, consisting of five judges, including Chief Justice of India D Y Chandrachud, delivered their final verdict early this week. The ruling came as a unanimous decision against legalising same-sex marriage, with a 3:2 majority vote against recognising civil unions for non-heterosexual couples and granting them the right to adopt children. Regrettably, this ruling is perceived as a significant setback for LGBTQ+ rights.

The final word

The SC asserted that marriage is not a fundamental right enshrined in the Indian Constitution. This judgement stems from an analysis of past legal precedents, including those referenced by the petitioners. These previous rulings firmly established an individual’s right to choose their life partner and live free from discrimination, irrespective of characteristics like caste, class, disability, sexual orientation, and gender identity.

However, the judges did not identify a direct correlation between the right to choose a life partner and the fundamental right to marry. They distinguished between marrying a partner and the freedom to choose one as two separate and distinct concepts. While the former was constitutionally enshrined, the latter was not.

According to the majority opinion, civil marriage or the acknowledgement of any such relationship with a similar legal status could not exist without specific statutory provisions and state action.

The demand, therefore, pertained to the right to access a publicly established and administered institution that didn’t currently exist ie., the demand for a legal framework of non-heterosexual marriage and the benefits thereof. While petitioners sought to compel this state action through the court, the absence of proactive state measures meant that the court would have to create an entire legal regime that didn’t exist before. Keeping in mind the principle of the separation of powers between the judiciary and legislature, the court held unanimously that the exercise of creating this regime was suited for the legislature, not the court. Moreover, the judges highlighted the interpretive challenges when attempting to introduce gender-neutral language into the Special Marriage Act as suggested by the petitioners. Eventually, they disagreed with their request to ‘read-in’ gender inclusivity into the Act.

The majority opinion also voiced apprehensions about the potential negative consequences of adopting a seemingly progressive, gender-neutral interpretation of the Special Marriage Act, especially regarding its impact on women. This concern is particularly pertinent within heterosexual relationships where power imbalances persist. An example of this concern was highlighted in provisions of the Special Marriage Act that related to alimony and maintenance (Sections 36 and 37), which specifically grant rights to women.

Non-binding

In the minority judgement, authored by Chief Justice DY Chandrachud and primarily supported by Justice Sanjay Kaul, it was contended that while the Constitution did not expressly bestow a right to marry, it did recognise a right to form ‘civil unions.’ The minority further held that the State should acknowledge such relationships for LGBTQ+ couples.

They emphasised that it was insufficient for individuals to have the ability and freedom to establish relationships that the State did not regulate and for the full realisation of these relationships, it was essential for the State to provide recognition to such unions.

For some context

This is the Indian Psychiatric Association’s position statement regarding LGBTQA, 2023: "In 2018, the Indian Psychiatric Society supported the decriminalisation of homosexuality and LGBTQA spectrum from Sec 377 of the Indian Penal Code and had stated that these are variants of normal sexuality, not deviant, and certainly not an illness. As an extension to the same, the Indian Psychiatric Society would like to reiterate that these individuals be treated like all citizens of the country, and once a citizen can enjoy all civil rights like education, employment, housing, income, government or military service, access to health care, property rights, marriage, adoption, survivorship benefits to name a few. There is no evidence to indicate that individuals on the LGBTQA spectrum cannot partake in any of the above. On the contrary, discrimination which prevents the above may lead to mental health issues."

Status quo on the bouquet of rights?

♦ Ability to file joint taxes.
♦ Access marital tax benefits.
♦ Obtain medical insurance, disability, and social security benefits for
one another.
♦ Enjoy next-of-kin status for hospital visits.
♦ Inherit your spouse’s estate or assets with minimal tax consequences.
♦ Make significant medical decisions on behalf of your spouse.

The key takeaways

♦ In a constitutional bench composed of five judges, a binding judgement is achieved when there is a majority, which, in this case, requires agreement from at least three judges. Therefore, the opinions expressed by Justices Ravindra Bhat, Hima Kohli, and PS Narasimha represent the established law.

♦ Consequently, the primary takeaway from the judgement is the acknowledgement of discrimination and violence experienced by LGBTQ+ individuals and the affirmation of the right of transgender individuals in heterosexual marriages to continue their relationships and to form new ones, maintaining the conventional gender categorisation of “man” and “woman”.

♦ However, the recognition of any non-heterosexual understanding of marriage would necessitate parliamentary intervention rather than judicial determination.

Nothing juvenile

♦ A fundamental divergence between the minority and the majority also arose concerning the rights of LGBTQ+ couples to adopt children.

♦ The minority opinion contended that India’s adoption regulations, governed by the Juvenile Justice (Care Protection of Children) Act, 2015 and the Adoption Regulations established by the Central Adoption Resource Authority (CARA), infringed upon the rights of unmarried couples as it prohibited them from adopting.

♦ The classification of couples into married and unmarried categories for adoption purposes under the Adoption Regulations was viewed by the minority as a violation of Articles 14 and 15 of the Constitution.

♦ In contrast, the majority opinion disagreed, asserting that the Juvenile Justice Act specifically limited joint adoption to married couples. Consequently, the Adoption Regulations, formulated in conformity with the Parent Act (the Juvenile Justice Act), were considered constitutionally sound because they did not extend beyond the Juvenile Justice Act’s scope.

♦ Furthermore, the decision to confine adoption to married couples was rooted in the principle that when there is a breakdown of marriage or abandonment/neglect of one partner and the child by the other, the law provides safeguards.

♦ As it stands, these legal safeguards enable the deserted or neglected spouse to receive maintenance and other statutory protections. This approach was implemented to ensure children’s best interests, permitting them to access such benefits.

♦ Since the law currently does not recognise LGBTQ+ marriages, it would be impermissible for the child to receive the same benefits they would have, had an LGBTQ+ relationship broken down. Thus, the majority held that restricting the right to adopt for married couples would stand, and it could not include LGBTQ+ couples in its ambit.

The big fight

For

The case involved 21 petitions filed by same-sex couples, LGBTQ+ activists, and various organisations who passionately argued for the right to equality, privacy, and the legal privileges of marriage.

Against

Opponents to the petitions included the Central government, the National Commission for Protection of Child Rights (NCPCR), and other organisations who are against same-sex marriage and the legal recognition of LGBTQ+ rights.

(The author is a Communications Manager at Nyaaya, the Vidhi Centre for Legal Policy and can be reached at [e-mail])