Excerpt from the judgment of Justice Ravindra Bhat in Same-Sex Marriage Case
Conclusion and directions
Marriage, in the ultimate context, is not defined merely by the elements, which delineate some of its attributes, and the differing importance to them, depending on times, such as permanence of a sexual partner; procreation and raising of children, stability to family, and recognition in the wider society.
Some, or most of these elements may be absent in many relationships: there may be no procreative possibility due to choice, or otherwise; some marriages may have no wider context, such as absence of the larger family circle, due to several reasons, including alienation or estrangement; there may be no matrimonial home, in some marriage, because of constraints including spouses being located in different places; some marriages may be (by choice or otherwise) bereft of physical or sexual content.
Yet, these marriages might be as successful, as fulfilling and complete as any other. The reason, in this author’s opinion, is that at its core, marriage has signified companionship, friendship, care and spiritual understanding a oneness, which transcends all other contents, and contexts. Thus, “home” is not a physical structure; it is rather the space where the two individuals exist, caring, breathing and thinking, living for each other. This is how traditionally it has been understood.
This feeling need not be unique to marriage; and in fact has come to be enjoyed by many without the cover of it (for e.g., those who are simply in committed cohabitational relationships). While many others, may only be able to experience such a feeling and way of life, if it were to have the legitimacy in society, akin to marriage.
That law has the potential to play such a legitimising role, cannot be overstated. The feeling of exclusion that comes with this status quo, is undoubtedly one which furthers the feeling of exclusion on a daily basis, in society for members of the queer community.
However, having concluded that there exists no fundamental right to marry, or a right to claim a status for the relationship, through the medium of a law (or legal regime) and acknowledged the limitations on this court in moulding relief, this court must exercise restraint; it cannot enjoin a duty or obligation on the State to create a framework for civil union or registered partnership, or marriage, or abiding co-habitational relationship. Yet, it would be appropriate to note that everyone enjoys the right to choice, dignity, non-discrimination, and privacy.
In a responsive and representative democracy which our country prides itself in being, such right to exercise choices should be given some status and shape. Of course, what that should be cannot be dictated by courts. At the same time, prolonged inactivity by legislatures and governments can result in injustices. Therefore, action in this regard, would go a long way in alleviating this feeling of exclusion that undoubtedly persists in the minds and experiences, of this community.
The resultant adverse impact suffered by the petitioners in relation to earned benefits [as elaborated in Part VI], solely because of the State’s choice to not recognise their (social) union or relationship, is one which results in their discrimination. This discriminatory impact – cannot be ignored, by the State; the State has a legitimate interest necessitating action.
The form of action – whether it will be by enacting a new umbrella legislation, amendments to existing statutes, rules, and regulations that as of now, disentitle a same-sex partner from benefits accruing to a ‘spouse’ (or ‘family’ as defined in the heteronormative sense), etc.– are policy decisions left to the realm of the legislature and executive.
However, the recognition that their non-inclusion in a legal framework which entitles them, and is a prerequisite eligibility criteria for myriad earned and accrued benefits, privileges, and opportunities has harsh and unjust discriminatory consequences, amounting to discrimination violating their fundamental right under Article 15 – is this court’s obligation, falling within its remit.
The State has to take suitable remedial action to mitigate the discriminatory impact experienced by the members of the queer community, in whatever form it deems fit after undertaking due and necessary consultation from all parties, especially all state governments and union territories, since their regulations and schemes too would have to be similarly examined and addressed.
THIS COURT HEREBY SUMMARIZES ITS CONCLUSIONS AND DIRECTIONS AS FOLLOWS:
i. There is no unqualified right to marriage except that recognised by statute including space left by custom.
ii. 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.
iii. The finding in (i) and (ii) should not be read as to preclude queer persons from celebrating their commitment to each other, or relationship, in whichever way they wish, within the social realm.
iv. Previous judgments of this court have established that queer and LGBTQ+ couples too have the right to union or relationship (under Article 21) – “be it mental, emotional or sexual” flowing from the right to privacy, right to choice, and autonomy. This, however, does not extend to a right to claim entitlement to any legal status for the said union or relationship.
v. The challenge to the SMA on the ground of under classification is not made out. Further, the petitioner’s prayer to read various provisions in a ‘gender neutral’ manner so as to enable same-sex marriage, is unsustainable.
vi. Equality and non-discrimination are basic foundational rights. The indirect discriminatory impacts in relation to earned or compensatory benefits, or social welfare entitlements for which marital status is a relevant eligibility factor, for queer couples who in their exercise of choice form relationships, have to be suitably redressed and removed by the State.
These measures need to be taken with expedition because inaction will result in injustice and unfairness with regard to the enjoyment of such benefits, available to all citizens who are entitled and covered by such laws, regulations or schemes (for instance, those relating to employment benefits: provident fund, gratuity, family pension, employee state insurance; medical insurance; material entitlements unconnected with matrimonial matters, but resulting in adverse impact upon queer couples).
As held earlier, this court cannot within the judicial framework engage in this complex task; the State has to study the impact of these policies, and entitlements.
vii. Consistent with the statement made before this Court during the course of proceedings on 03.05.2023, 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.
viii. The discussion on discriminatory impacts is in the context of the effects of the existing regimes on queer couples. While a heterosexual couple’s right to live together is not contested, the logic of the discriminatory impact [mentioned in conclusion (vi) above] faced by queer couples cohabiting together, would definitionally, however, not apply to them.
ix. Transgender persons in heterosexual relationships have the freedom and entitlement to marry under the existing statutory provisions.
x. Regulation 5(3) of the CARA Regulations cannot be held void on the grounds urged. 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.
In an unforeseen eventuality, the adopted child in question, could face exclusion from the benefits otherwise available to adopted children of married couples. This aspect needs further consideration, for which the court is not the appropriate forum.
xi. Furthermore, the State shall ensure – consistent with the previous judgment of this Court in K.S. Puttaswamy (supra), Navtej Johar (supra), Shakti Vahini (supra) and Shafin Jahan (supra)- that the choice exercised by queer and LGBTQ couples to cohabit is not interfered with and they do no face any threat of violence or coercion. \
All necessary steps and measures in this regard shall be taken. The respondents shall take suitable steps to ensure that queer couples and transgender persons are not subjected to any involuntary medical or surgical treatment.
xii. The above directions in relation to transgender persons are to be read as part of and not in any manner whittling down the directions in NALSA (supra) so far as they apply to transgender persons.
xiii. 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.
Supriya @Supriyo Chakraborty v. Union of India (2023)