Excerpt from the judgment of Justice DY Chandrachud
“Individual dignity cannot be allowed to be subordinate to the morality of the mob. Nor can the intolerance of society operate as a marauding morality to control individual self-expression in its manifest form. …”
Article 25(1) of the Constitution is as follows:
“25. Freedom of conscience and free profession, practice and propagation of religion–
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.”
Article 25(1) has four components –
- The first component makes the right available to all persons;
- the second component indicates that all persons are equally entitled to the rights it codifies;
- the third component deals with two distinct concepts: the right to freedom of conscience and the right freely to profess, practice and propagate religion. While the freedom of conscience subsumes within its fold the right to profess, practice and propagate religion, it is not restricted to this right alone. The rights with respect to religion are one aspect of the freedom of conscience;
- the fourth component makes the rights codified in Article 25 subject to public order, morality, health, and the other provisions of Part III. The right under Article 25 is an individual right because conscience inheres in an individual.[1]
Application to LGBTQ Community
The right under Article 25 is also available to members of the LGBTQ community since it is available to all persons. But what does this freedom entail, beyond religious rights? Black’s Law Dictionary defines conscience in the following terms:
“Conscience. The moral sense; the faculty of judging the moral qualities of actions, or of discriminating between right and wrong; particularly applied to one’s perception and judgment of the moral qualities of his own conduct, but in a wider sense, denoting similar application of the standards of morality to the acts of others. The sense of right and wrong inherent in every person by virtue of his existence as a social entity. …”[2]
All persons, including members of the queer community, have the right to judge the moral quality of the actions in their own lives, and having judged their moral quality, have the right to act on their judgment in a manner they see fit. This attribute is of course not absolute and is capable of being regulated by law. The meaning of liberty is – at its core – the ability to do what one wishes to do and be who one wishes to be, in accordance with law.
All persons may arrive at a decision regarding what they want to do and who they want to be by exercising their freedom of conscience. They may apply their sense of right and wrong to their lives and live as they desire, in accordance with law. Some of the decisions the moral quality of which they will judge include the decision on who their life partner will be and the manner in which they will build their life together. Each individual is entitled to decide this for themselves, in accordance with their conscience.
Exception
The right under Article 25 is subject to four exceptions – public order, morality, health, and the other provisions of Part III. The respondents have not demonstrated that public order will be in peril or that the health of the public at large or of individuals will be adversely impacted, if queer persons enter into a union with their partners.
As for morality, it is settled law that Article 25 speaks of constitutional morality and not societal morality. In Indian Young Lawyers Assn. v. State of Kerala,[3] a five-Judge Bench of this Court held:
“Morality for the purposes of Articles 25 and 26 cannot have an ephemeral existence. Popular notions about what is moral and what is not are transient and fleeting. Popular notions about what is or is not moral may in fact be deeply offensive to individual dignity and human rights. Individual dignity cannot be allowed to be subordinate to the morality of the mob. Nor can the intolerance of society operate as a marauding morality to control individual self-expression in its manifest form. …
The expression has been adopted in a constitutional text and it would be inappropriate to give it a content which is momentary or impermanent. Then again, the expression ‘morality’ cannot be equated with prevailing social conceptions or those which may be subsumed within mainstream thinking in society at a given time. … The content of morality is founded on the four precepts which emerge from the Preamble.
The first among them is the need to ensure justice in its social, economic and political dimensions. The second is the postulate of individual liberty in matters of thought, expression, belief, faith and worship. The third is equality of status and opportunity amongst all citizens. The fourth is the sense of fraternity amongst all citizens which assures the dignity of human life.”
Hence, the content of morality must be determined on the basis of the preambular precepts of justice, liberty, equality, and fraternity. None of these principles are an impediment to queer persons entering into a union. To the contrary, they bolster the proposition that queer persons have the right to enter into such a relationship.
Finally, the other provisions in Part III (which may also restrict the exercise of the right under Article 25) do not act as a bar to the exercise of the right in the present case. Similar to the preambular values, they give rise to the right to enter into a union.
A union may emerge from an abiding, cohabitational relationship of two persons – one in which each chooses the other to impart stability and permanence to their relationship. Such a union encapsulates a sustained companionship. The freedom of all persons (including persons of the queer community) to form a union was recognised by this Court in Navtej Johar v. Union of India (2018):
“167. … There can be no doubt that an individual also has a right to a union under Article 21 of the Constitution. When we say union, we do not mean the union of marriage, though marriage is a union. As a concept, union also means companionship in every sense of the word, be it physical, mental, sexual or emotional. The LGBT community is seeking realisation of its basic right to companionship, so long as such a companionship is consensual, free from the vice of deceit, force, coercion and does not result in violation of the fundamental rights of others.”
Such a union has to be shielded against discrimination based on gender or sexual orientation.
In K.S. Puttaswamy (Privacy-9J.) v. Union of India,[4] Dr. DY Chandrachud, J. held that discrimination against an individual on the basis of sexual orientation is offensive to their dignity and self-worth:
“144. … Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the “mainstream”. Yet in a democratic Constitution founded on the Rule of Law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties. …
Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.”
This Court recognized that equality demands that queer persons are not discriminated against. An abiding cohabitational relationship which includes within its fold a union of two individuals cannot be discriminated against on the basis of sexual orientation.
Material and expressive entitlements which flow from a union must be available to couples in queer unions. Any form of discrimination has a disparate impact on queer couples who unlike heterosexual couples cannot marry under the current legal regime.
As a consequence of the rights codified in Part III of the Constitution, this Court holds that all persons have a right to enter into an abiding union with their life partner. This right, undoubtedly, extends to persons in queer relationships. At this juncture, it is necessary to clarify the difference between relationships and unions of the kind which this Court speaks of, and unions and marriages.
Any person may enter into a consensual romantic or sexual relationship with another person. This may last for a few months or for years. Regardless of the period for which the relationship continues, no legal consequences attach to it, except where provided by law (such as in terms of the DV Act). However, when two persons enter into a union with a person whom they consider to be their life partner, certain legal consequences will follow.
For instance, if one of them happens to die, their partner will have the right to access the body of the deceased.
Reference
Supriya @Supriyo Chakraborty v. Union of India (2023)
[1] Indian Young Lawyers Assn. v. State of Kerala & Ors. (2019) 11 SCC 1
[2] Black’s Law Dictionary (5th edn.; 1979)
[3] (2019) 11 SCC 1
[4] 3 (2017) 10 SCC 1