Update on legal validation of same-sex and queer marriage judgment by the Constitution bench

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The Constitution bench of the Supreme Court while delivering the judgment on pleas related to the legal validation of same-sex marriage stated that “This Court has recognized that queer persons are no discriminated upon and their union cannot be discriminated against based on sexual orientation and material and services flowing to heterosexual couples and denied to them will be a violation of the fundamental right.” Further, Chief Justice of India DY Chandrachud opined that “If a transgender person wishes to marry a heterosexual person such marriage will be recognized as one would be man and another would be woman, transgender man has the right to marry a woman, transgender woman has the right to marry a man and transgender woman and transgender man can also marry, and if not allowed it will violate the Transgender Act.” While hearing the matter, CJI Chandrachud stated that the “Constitution of India does not grant a fundamental right to marry and institution cannot be elevated to the status of a fundamental right.” He also highlighted that transgenders have the right to marry under existing law. 

During the court proceedings, the CJI also addressed the matter in relation to CARA and adoption. It has been determined that CARA regulation is unconstitutional. CJI stated that “CARA regulation 5(3) discriminates between partners in atypical unions. It will disproportionately affect non-heterosexual couples and thus an unmarried heterosexual couple can adopt but this is not the same for the queer community. The law cannot make an assumption about good and bad parenting and perpetuates the stereotype that only heterosexuals can be good parents. Thus the regulation is held to be VIOLATIVE of (the rights of) the queer community.” He added that the queer person does not have the right to do so and this exclusion only reinforces the discrimination and thus CARA circular is a violation of Article 15. The CJI remarked, “Queer couple has the right to jointly adopt a child. CARA regulation is unconstitutional. Unmarried couples can also adopt a child and the State can make regulations needed for the same.”

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The bench also pointed out that the petitioners submitted the discrimination and violence faced by the queer community; therefore, provided directions to Union, States, Union Territories, and Police for the same. Directions to Union, States, and Union Territories ensuring non-discrimination against the queer community are as follows:

  • “Ensure no discrimination in the supply of goods and services, sensitize the public to prevent harassment of any kind,
  • Establish safe houses in all areas,
  • Ensure that sex change operations are not allowed when they are not of age to comprehend the effect of such procedures. No person shall undergo hormonal therapy as a precondition to be able to be recognized as a queer person.”

Direction issued by the SC to the Police ensures that no queer person is harassed to ascertain gender identity, and no force by police to go back to their natal families; when a police complaint is filed by a queer couple, after verification, due protection is to be granted. The CJI further told the State, Union, and UTs to not bar queer people to get into a union to avail benefits of the state. In response to this, Solicitor General Tushar Mehta assured that “a Committee shall be set up with domain experts ... The committee is to hold wide stakeholder consultations with the queer community to see if such families can have ration cards, can have insurance facilities, If medical practitioners have the obligation to consult family for terminal illness, and Rights from employment (pension, gratuity, etc.), etc.” He added that the committee report is to be looked at the Union government level. 

In this context, Justice Sanjay Kishan Kaul presented his opinion stating “I agree that entitlements flowing from marriage are regulated by regulations and laws, and tinkering with SMA will have a cascading effect. I agree with SG Mehta.” He added, “Legal recognition of same-sex unions is a step towards marriage equality... However, marriage is not the end. Let us preserve the autonomy so long as it does not impinge on others' rights.” Further, Justice S Ravindra Bhat reads his opinion as “I agree queerness is not urban or elite. We do agree that there is no fundamental right to marry and that SMA is not unconstitutional and that words cannot be read into and that transgender persons have the right to marry under the prevalent laws.” He also addressed the judgment of Puttuswamy stating it “articulated the broadest swipe of Article 21 and (Article 21) includes right to choose a life partner…” 

Justice Bhat further remarked “We agree with CJI on transgender persons having a right to marry. We disagree on the adoption aspect.” Following this, Justice Bhat also listed out directions including, “No unqualified right to marriage; entitlement to the civil union can be only through enacted laws and courts cannot enjoin such creation of regulatory framework; the queer person is not prohibited in celebrating their love for each other; no right to claim recognition for such union by the queer persons; queer persons have the right to choose their own partner and they must be protected to enjoy such rights; union shall set up a high-powered committee to undertake a study of all relevant factors; transgender persons have the right to marry; CARA regulations are not held to be void; state shall ensure compliance with the judgment that choice of queer to cohabit is not interfered with; state shall take steps that queer and transgender are not subjected to involuntary medical procedures.”

Justice Hima Kohli and Justice PS Narasimha agreed with Justice Bhat, proceeding to continue after lunch.

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