In a setback to gay rights activists, the Supreme Court on Tuesday refused to accord legal recognition to same-sex marriage, saying there was "no unqualified right" to marriage with the exception of those that are recognised by law.
The apex court, however, made a strong pitch for the rights of queer people so they don't face discrimination in accessing goods and services that are available to others, safe houses known as Garima Greh in all districts to provide shelter to members of the community facing harassment and violence and dedicated hotline numbers which they could use in case of trouble.
Holding that transgender people in heterosexual relationships have the freedom and entitlement to marry under the existing statutory provisions, the apex court said an entitlement to legal recognition of the right to union, akin to marriage or civil union, or conferring legal status to the relationship can be only done through "enacted law".
A five-judge constitution bench headed by Chief Justice DY Chandrachud delivered four separate verdicts on a batch of 21 petitions seeking legal sanction for same-sex marriages.
All the five judges were unanimous in refusing to accord legal recognition to same-sex marriage under the Special Marriage Act and observed it is within Parliament's ambit to change the law for validating such union.
They, however, made an impassioned pitch for granting benefits and privileges that are otherwise available to married couples, to people in same-sex relationships, and steps to ensure they are not discriminated against.
While the CJI wrote a separate 247-page verdict, Justice Sanjay Kishan Kaul penned a 17-page judgement in which he broadly agreed with Justice Chandrachud's views.
Justice S Ravindra Bhat, who authored an 89-page judgement for himself and Justice Hima Kohli, disagreed with certain conclusions arrived at by the CJI including on applicability of adoption rules for queer couples.
Justice PS Narasimha said in his 13-page verdict that he was in complete agreement with the reasoning given and conclusions arrived at by Justice Bhat.
The judges were unanimous in holding that queerness is a natural phenomenon and not "urban or elite" occurrence.
"There is no unqualified right to marriage except that's recognised by statute including space left by custom," Justice Bhat said in his judgement.
"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.
Justice Bhat made it clear that these findings should not be read as to preclude queer persons from celebrating their commitment to each other or their relationship in whichever way they wish within the social realm.
Referring to the statement made by the Centre during the hearing on the matter, he said "…the Union shall set up a high-powered committee chaired by the Union cabinet secretary, to undertake a comprehensive examination of all relevant factors, especially including those outlined above. In the conduct of such exercise, the concerned representatives of all stakeholders, and views of all States and Union Territories shall be taken into account".
In his judgement, the CJI also recorded the assurance by Solicitor General Tushar Mehta that the Centre will constitute a committee chaired by the Cabinet Secretary for the purpose of defining and elucidating the scope of the entitlements of queer couples who are in union.
He said there is no universal conception of the institution of marriage, nor is it static.
"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 recognising and regulating queer marriage," Justice Chandrachud said.
He said the freedom of all persons, including queer couples, to enter into a union is protected by Part III of the Constitution.
"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 recognize such unions and grant them benefit under law," the CJI said, adding the right to enter into a union cannot be restricted based on sexual orientation.
He said intersex persons, who identify themselves as either male or female, have the right to marry under existing law including personal laws which regulate marriage.
Observing that unmarried couples, including queer couples, can jointly adopt a child, the CJI said regulation 5(3) of the adoption regulations is ultra vires the Juvenile Justice (Care and Protection of Children) Act and Articles 14 and 15 of the Constitution.
"Regulation 5(3) of the CARA (Central Adoption Resource Authority) regulations cannot be held void on the grounds urged," Justice Bhat said, striking a note different from Justice Chandrachud.
"At the same time, this court is of the considered opinion that CARA and the Central government should appropriately consider the realities of de facto families, where single individuals are permitted to adopt and thereafter start living in a non-matrimonial relationship," he said.
Justice Bhat said the State shall ensure that choice exercised by queer and LGBTQ couples to cohabit is not interfered with and they do no face any threat of violence or coercion.
"This court is alive to the feelings of being left out, experienced by the queer community; however, addressing their concerns would require a comprehensive study of its implications involving a multidisciplinary approach and polycentric resolution, for which the court is not an appropriate forum to provide suitable remedies," he said.
In his verdict, the CJI passed a slew of directions to the Centre, states and Union Territories to ensure that the queer community is not discriminated against because of their gender identity or sexual orientation and also to take steps to sensitise the public about queer identity, including that it is natural and not a mental disorder.
Justice Chandrachud directed the police machinery that there shall be no harassment of queer couples by summoning them to police station or visiting their places of residence solely to interrogate them about their gender identity or sexual orientation.
Justice Chandrachud directed the government authorities to ensure that treatment offered by doctors or other persons, which aim to change the gender identity or sexual orientation are ceased with immediate effect.
“Ensure that inter-sex children are not forced to undergo operations with regard only to their sex, especially at an age at which they are unable to fully comprehend and consent to such operations,” the verdict said.
In his separate verdict, Justice Kaul said, "Non-heterosexual unions and heterosexual unions/marriages ought to be considered as two sides of the same coin, both in terms of recognition and consequential benefits."
He said legal recognition of non-heterosexual unions represents a step forward towards marriage equality.
"I believe that this moment presents an opportunity of reckoning with this historical injustice and casts a collective duty upon all constitutional institutions to take affirmative steps to remedy the discrimination," he said.
Justice Kaul said the duty of a constitutional court is to uphold the rights enshrined in the Constitution and to not be "swayed by majoritarian tendencies or popular perceptions".
In his judgement, Justice Narasimha said he was not oblivious to the concerns of LGBTQ+ partners with respect to denial of access to certain benefits and privileges that are otherwise available only to married couples.
"I am of the firm belief that a review of the impact of legislative framework on the flow of such benefits requires a deliberative and consultative exercise, which exercise the legislature and executive are constitutionally suited, and tasked, to undertake," he said.
The LGBTQIA++ persons, who had won a major legal battle in 2018 in the Supreme Court which decriminalised consensual gay sex, had moved the apex court seeking validation of same-sex marriage and consequential reliefs such as rights to adoption, enrolment as parents in schools, opening of bank accounts and availing succession and insurance benefits.
On May 11, the bench had reserved its verdict on the pleas after a marathon hearing for 10 days. The apex court had commenced hearing arguments in the matter on April 18.
Some of the petitioners had urged the apex court to use its plenary power, "prestige and moral authority" to push the society to acknowledge such a union which would ensure LGBTQIA++ lead a "dignified" life like heterosexuals.
LGBTQIA++ stands for lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual and ally persons.
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