Excerpt from Same-Sex Marriage
The atypical family
One’s natal family usually consists of one’s immediate relatives. The people who constitute one’s ‘immediate relatives’ vary from society to society. For instance, many Indians grow up in a Hindu Undivided Family which is commonly known as a ‘joint family’ and which is recognised by the law. The family is typically thought of as comprising a mother and a father, to which a life partner is added (usually in a heterosexual relationship).
Later, children join this family, and so the cycle continues. While this conception of a family dominates our collective understanding, it is not the only valid mode by which a family can be formed. Myriad persons do not follow this blueprint for the creation of a family. They instead have their own, atypical blueprint.
In Deepika Singh v. Central Administrative Tribunal 2022 SCC OnLine SC 1088, this Court rightly acknowledged the existence of atypical families:
“26. The predominant understanding of the concept of a “family” both in the law and in society is that it consists of a single, unchanging unit with a mother and a father (who remain constant over time) and their children. This assumption ignores both, the many circumstances which may lead to a change in one’s familial structure, and the fact that many families do not conform to this expectation to begin with.
Familial relationships may take the form of domestic, unmarried partnerships or queer relationships. A household may be a single parent household for any number of reasons, including the death of a spouse, separation, or divorce. Similarly, the guardians and caretakers (who traditionally occupy the roles of the “mother” and the “father”) of children may change with remarriage, adoption, or fostering.
These manifestations of love and of families may not be typical but they are as real as their traditional counterparts. Such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation. The black letter of the law must not be relied upon to disadvantage families which are different from traditional ones.”
Queer Relationships and Family formation
Queer relationships may constitute one’s family. Persons in such relationships are fulfilling their innate and human need to be a part of a family and to create their family. This conception of a family may be atypical but its atypical nature does not detract from the fact that it is a family.
Further, queer persons are often rejected by their natal families and have only their partner or their chosen community to fall back on. In addition to the different forms of kinship recognized in Deepika Singh (supra), the guru-chela bond of transgender persons may also be a familial bond. Unlike hijras who often have the option of joining the hijra community and forming the guru-chela bond, transmen do not have traditions or customs which may lead to the creation of non-biological familial bonds with other transmen as a group.
Regardless, they form close bonds with other transmen and many consider these bonds to be familial. These atypical manifestations of the family unit equally constitute the fundamental groups of society. The Constitution accounts for plural identities and values. It protects the right of every person to be different.
Atypical families, by their very nature, assert the right to be different. Difference cannot be discriminated against simply because it exists. Articles 19 and 21 protect the rights of every citizen and not some citizens.
The right to dignity, autonomy, and privacy
It is not only formal freedom which is significant but also substantive freedom or the opportunity to achieve what one sets out to achieve and the conditions which enable this. The freedom guaranteed under the Constitution is realised in substance only when the conditions for their effective exercise are created. Formal freedom is translated into substantive freedom through the formulation of schemes and policies.
When citizens are prevented from exercising their rights, the courts of the country create the conditions for their exercise by giving effect to the laws enacted by the legislative wing or the schemes formulated by the executive wing. In the process, courts interpret the Constitution and the rights and freedoms it recognizes. This exercise lies at the core of Article 21 of the Constitution, which guarantees the right to life and personal liberty.
The question of what it means to be free – or to have liberty – is of equal significance. It is a question which has plagued philosophers, ethicists, and economists alike. The answer may mean different things to different people and may change depending on the circumstances in which the question is asked. Simply put, the ability to do what one wishes to do and be who one wishes to be (in accordance with law) lies at the heart of freedom.
Article 21 is available to all persons including queer persons. Article 21 encompasses the rights to dignity, autonomy, and privacy. Each of these facets animates the others. It is not possible to speak of the right to enter into a union without also speaking of the right to intimacy, which emanates from these rights. These rights demand that each individual be free to determine the course of their life, as long as their actions are not barred by law. Choosing a life partner is an integral part of determining the course of one’s life.
Most people consider this decision to be one of the most important decisions of their lives – one which defines their very identity. Life partners live together, spend a significant amount of time with one other, merge their respective families, create a family of their own, care for each other in times of sickness, and support one another and much more. Hence, the ability to choose one’s partner and to build a life together goes to the root of the right to life and liberty under Article 21.
Undoubtedly, many persons choose not to have a life partner – but this is by choice and not by a deprivation of their agency. The law constrains the right to choose a partner in certain situations such as when they are within prohibited degrees of relationships or are in a consanguineous relationship.
Principle 24 of the Yogyakarta Principles (on the application of international human rights law in relation to sexual orientation and gender identity) states that all people have the right to found a family:
“Everyone has the right to found a family, regardless of sexual orientation or gender identity. Families exist in diverse forms. No family may be subjected to discrimination on the basis of the sexual orientation or gender identity of any of its members.”
While India is not a signatory to the Yogyakarta Principles, this Court has recognized their relevance to the adjudication of cases concerning sexual minorities.
Depriving someone of the freedom to choose their life partner robs them of their autonomy, which in turn is an affront to their dignity. Preventing members of the LGBTQ community from entering into a union also has the result of denying (in effect) the validity of their sexuality because their sexuality is the reason for such denial. This, too, would violate the right to autonomy which extends to choosing a gender identity and sexual orientation.
The act of entering into an intimate relationship and the choices made in such relationships are also protected by the right to privacy. As held by this Court in Navtej Johar v. Union of India (2018) and Justice KS Puttaswamy (9J) v. Union of India (2017), the right to privacy is not merely the right to be left alone but extends to decisional privacy or privacy of choice.
The right to health
The right to health is also a crucial component of the right to life and liberty. The health of a person includes both, their physical and their mental wellbeing. Parliament enacted the Mental Healthcare Act 2017 to regulate the provision of mental healthcare services.
An assessment of the mental health of a person cannot be limited to considering whether they have a mental illness or disease but must also include an assessment of whether their mental health is thriving. The Constitution of the World Health Organization declares that:
“Health is a state of complete physical, mental and social wellbeing and not merely the absence of disease or infirmity.”
Mental health is therefore a state of complete mental wellbeing and not merely the absence of mental illnesses. Parliament is also cognizant of this fact as evident from the overall scheme and provisions of the Mental Healthcare Act. Though this statute is primarily concerned with mental illnesses and access to healthcare, Chapter VI recognizes the value of complete mental wellbeing by providing for the promotion of and awareness about mental health.
A person’s mental well-being can only be secured if they are allowed the freedom and liberty to make choices about their lives. If their choices are restrained, their overall mental well-being would undoubtedly be degraded. Choices may be restrained by expressly denying them their freedom or by failing to create conditions for the exercise of such freedom.
The right of queer persons to access mental healthcare is recognized by Section 18 which stipulates that persons have a right to access mental healthcare without being discriminated against on the basis of their sex, gender, or sexual orientation. This is undoubtedly a progressive step in line with constitutional ideals.
The mental health of members of the LGBTQ community may suffer not only because of the discrimination they may face at the hands of their families or society in general but also because they are prevented from choosing their life partner and entering into a meaningful, long-lasting relationship with them.
The effect of the right to life under Article 21 read with Section 18 of the Mental Healthcare Act is that queer people have the right to complete mental health, without being discriminated against because of their sex, gender, or sexual orientation. A natural consequence of this is that they have the right to enter into a lasting relationship with their partner. They also have a right not to be subjected to inhumane and cruel practices or procedures.
Supriya @ Supriyo Chakraborty v. Union of India (2023)
 Common Cause v. Union of India, (2018) 5 SCC 1; Union of India v. Moolchand Kharaiti Ram Trust, (2018) 8