Dissecting the same-sex marriage verdict

Prodded by the bench during the hearing, the Centre offered to constitute a panel headed by the Cabinet Secretary to examine the rights and entitlements of queer persons in the country.
Illustration: Soumyadip Sinha
Illustration: Soumyadip Sinha

NEW DELHI: It’s not often that the Chief Justice of India’s opinion on a matter is rendered ineffective because the majority on a Constitution bench thinks otherwise. But last Tuesday was one such day. Chief Justice D Y Chandrachud’s verdict granting adoption rights to same-sex couples besides allowing them the right to form civil unions, was defeated by a 3:2 majority. Such instances of the CJI’s position getting knocked out of the park happened on two other occasions in recent memory.

In a challenge to a constitutional amendment that granted 10% reservation to the economically weaker section among the ‘upper’ castes, Chief Justice U U Lalit was opposed to the law. But he was in a minority as the amendment was upheld 3:2. Interestingly, it was Justice Ravindra S Bhat, who wrote the dissenting verdict for himself and CJI Lalit in that case. It’s the same Justice Bhat who did the demolition job earlier this week by nullifying CJI Chandrachud’s attempt to give some relief to same-sex couples. His was the majority judgment as it was supported by justices Hima Kohli and P S Narasimha.

Chief Justice J S Khehar, heading a Constitution bench on the triple talaq issue in 2017, saw no problems with talaq-e-biddat, saying it was protected by the right to religion. But his position was brushed aside by the majority 3:2 ruling that found the practice arbitrary and unconstitutional.

On same-sex marriage, the bench rejected the contention that marriage was a fundamental right. But the bench refused to strike down the Special Marriage Act (SMA) or read words into the law as it cited institutional limitations, adding doing so would amount to judicial legislation. The bench, however, agreed that there was no bar on transgenders in heterosexual relationships having the right to marry under the existing legal framework. But that was a reiteration of their right; there was no forward movement.

Special Marriage Act

The Special Marriage Act, of 1954 is a permissive legislation that allows any two persons to marry without discarding their respective religions. It is also a mechanism for inter-caste marriage independent of personal law. The petitioners wanted Section 4(c) of the SMA made gender neutral as it prescribes in its present form that males complete the age of 21 years and females the age of 18 years to be eligible for marriage. But the court was of the view that changing the SMA would have a cascading effect on other laws, which are as complex as the proverbial ‘spider’s web’ of legislations and regulations. The option of doing away with the SMA was worse, as it would take the country back to the pre-Independence era where interfaith and inter-caste relationships were not permitted, the CJI said, adding he didn’t want to eradicate one form of discrimination to permit another.  The petitioners had said the SMA denies LGBTQIA+ community equal protection under the laws. Non-recognition of same-sex and gender-non-conforming marriage causes prejudice and denies them rights under social welfare and beneficial legislations, they pointed out. It is also violative of Article 15 (discrimination on grounds of religion, race, caste, gender, or place of birth) of the Constitution, it was submitted.

Up to states to make laws

Both the CJI and Justice Bhat said state legislatures were free to enact laws recognising and regulating same-sex marriage in the absence of any Central law made by Parliament on the subject.“Under Articles 245 and 246 of the Constitution read with Entry 5 of List III to the Seventh Schedule, it lies within the domain of Parliament and the state legislatures to enact laws recognizing and regulating queer marriage,” the CJI said.“The State may choose from a number of policy outcomes; they may make all marriage and family-related laws gender-neutral, or they may create a separate SMA-like statute in gender-neutral terms to give the queer community an avenue for marriage, they may pass an Act creating civil unions, or a domestic partnership legislation, among many other alternatives. Another consequence may be that rather than the Union Government, the State legislatures takes action and enacts law or frameworks, in the absence of a Central law,” Justice Bhat said.

No right to civil union

Having shut the door on same-sex marriage, the CJI sought to open a window by permitting civil unions. A civil union is a legal status that allows same-sex couples certain rights and responsibilities married couples get to exercise, like inheritance, property, joint parenting, etc. “The failure of the state to recognise the bouquet of entitlements which flow from a union would result in a disparate impact on queer couples who cannot marry under the current legal regime. The state has an obligation to recognise such unions and grant them benefits under the law,” the CJI said. Justice Bhat disagreed. “An entitlement to legal recognition of the right to union – akin to marriage or civil union, or conferring legal status upon the parties to the relationship can be only through enacted law. A sequitur of this is that the court cannot enjoin or direct the creation of such regulatory framework resulting in legal status,” he said.

Divergence on adoption rights

Last year, the Central Adoption Resource Authority (CARA) restricted adoption to couples who have been in a stable marital relationship for at least two years. The petitioners argued that it hinders their right to adoption.  The CJI said Section 57 of the Juvenile Justice Act does not expressly bar unmarried couples from adopting a child because it uses the word ‘spouse’ and not ‘married couples’. An unmarried couple could also include queer relationships, he reasoned and found the CARA order inconsistent with the JJ Act. Supporting adoption rights for queer couples, the CJI said there is nothing to prove that only heterosexual couples can provide stability to a child. But in Justice Bhat’s opinion, to read the law in the way the CJI did “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.”

Panel to decide on rights, entitlements

Prodded by the bench during the hearing, the Centre offered to constitute a panel headed by the Cabinet Secretary to examine the rights and entitlements of queer persons in the country. The bench unanimously welcomed the proposal. “The Committee shall include experts with domain knowledge and experience in dealing with the social, psychological, and emotional needs of persons belonging to the queer community... The Committee shall before finalizing its decisions conduct wide stakeholder consultation amongst persons belonging to the queer community,” the CJI said. Also, basic questions of benefits like providing ration cards to queer couples, letting them have a joint bank account with the option to name the partner as a nominee in the case of death, besides succession rights, maintenance, and financial benefits such as under the Income Tax Act 1961, rights flowing from employment such as gratuity, family pension and insurance would also be under the committee’s purview.

Neither elite nor urban

The Centre claimed that homosexuality and queer gender identities or transgenderism are predominantly present in urban areas and amongst the elite sections of society, adding they were largely unknown to rural India and amongst the working classes. But the CJI rejected the argument. He said queerness is a natural phenomenon known to India since ancient times. He went on to say it is neither urban nor elite. “To imagine queer persons as existing only in urban and affluent spaces is to erase them even as they exist in other parts of the country. It would also be a mistake to conflate the ‘urban’ with the ‘elite’,” he said. On that point, Justice Bhat was on the same page. “The sections in the CJI’s verdict) addressing the Union Government’s preliminary objections... that queerness is a natural phenomenon that is neither urban or elite are parts we have no hesitation in agreeing with.

Transgender heterosexual marriage

The bench was unanimous that if a transgender person is in a heterosexual relationship and wishes to marry their partner (and if each of them meets the other requirements set out in the applicable law), it would be recognised under marriage laws. “The laws governing marriage are framed in the context of a heterosexual relationship. Since a transgender person can be in a heterosexual relationship like a cis-male or cis-female, a union between a transwoman and a transman, or a transwoman and a cisman, or a transman and a ciswoman can be registered under marriage laws,” the bench said.

Parting shot

After Justice Bhat tore into the CJI’s draft verdict, the latter gave a point-by-point rebuttal, to which the former responded saying he stands by his position. It was intellectual sparring at the highest level in good faith, all captured in the final judgment. In his parting shot, Justice Bhat said, “While moulding relief, as a court we must be cognizant that despite being empowered to see the capabilities of the law in its grand and majestic formulation, we must not be led aground because we are blinded by its glow.”

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