Excerpt from the judgment of Justice Chandrachud in Marriage Equality Case
In the opinion authored by him, my learned brother, Justice Ravindra Bhat states that unenumerated rights are recognised by Courts in response to State action “that threaten the freedom or right directly or indirectly.” With due respect, such a narrow understanding of fundamental rights turns back the clock on the rich jurisprudence that the Indian courts have developed on Part III of the Constitution.
This Court has held in numerous cases held that the rights of persons are infringed not merely by overt actions but also by inaction on the part of the State. Some of these precedents are referred to below.
In NALSA v. Union of India (2014), this Court held that the State by rendering the transgender community invisible and failing to recognize their gender identity deprived them of social and cultural rights. This Court recognised the duty of the State to enable the exercise of rights by the transgender community and issued a slew of directions to enforce this duty.
Justice AK Sikri in his opinion issued the following declarations and directions:
“129. We, therefore, declare:
1. Hijras, Eunuchs, apart from binary gender, be treated as “third gender” for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.
2. Transgender persons’ right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.
3. We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.
4. Centre and State Governments are directed to operate separate HIV Sero-surveillance Centres since Hijras/ Transgenders face several sexual health issues.
5. Centre and State Governments should seriously address the problems being faced by Hijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one’s gender is immoral and illegal.
6. Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities.
7. Centre and State Governments should also take steps for framing various social welfare schemes for their betterment.
8. Centre and State Governments should take steps to create public awareness so that TGs will feel that they are also part and parcel of the social life and be not treated as untouchables.
9. Centre and the State Governments should also take measures to regain their respect and place in the society which once they enjoyed in our cultural and social life.”
In Union of India v. Association of Democratic Reforms, proceedings under Article 136 were initiated against the judgment of the High Court of Delhi which recognised the rights of citizens to receive information regarding criminal activities of a candidate to the legislative assembly. The High Court directed the Election Commission to inter alia secure information on whether the candidate is accused of any offence and the assets possessed by a candidate.
A three-Judge Bench of this Court dismissed the appeal and held that it is imperative that the electorate possesses sufficient information to enable them to exercise their right to vote. The observations are extracted below:
“34. From the afore quoted paragraph, it can be deduced that the members of a democratic society should be sufficiently informed so that they may influence intelligently the decisions which may affect themselves and this would include their decision of casting votes in favour of a particular candidate. If there is a disclosure by a candidate as sought for then it would strengthen the voters in taking appropriate decision of casting their votes.
45. Finally, in our view this Court would have ample power to direct the Commission to fill the void, in the absence of suitable legislation covering the field and the voters are required to be well informed and educated about contesting candidates so that they can elect a proper candidate by their own assessment.
It is the duty of the executive to fill the vacuum by executive orders because its field is coterminous with that of the legislature, and where there is inaction by the executive, for whatever reason, the judiciary must step in, in exercise of its constitutional obligations to provide a solution till such time the legislature acts to perform its role by enacting proper legislation to cover the field.
The adverse impact of lack of probity in public life leading to a high degree of corruption is manifold. Therefore, if the candidate is directed to declare his/her spouse’s and dependants’ assets — immovable, movable and valuable articles — it would have its own effect.”
In view of the discussion above, the observation of Justice Bhat that an overt action of the State is necessary for the court to direct the State to create enabling conditions has no jurisprudential basis. Neither the provisions of the Constitution nor the earlier decisions of this Court create such a distinction.
In fact, as I have discussed in detail, Article 32 of the Constitution states that the Supreme Court shall have the power to issue directions for the enforcement of rights conferred by Part III without making any distinction between action and inaction by the State.
I also disagree with the observations of Bhat J that in the absence of a legal regime, the power of this Court to issue directions to enable the facilitation of rights is limited. In Sheela Barse v. Union of India, the petitioner, a social activist brought to the attention of this court that the State of West Bengal jailed persons with mental disabilities who are not suspected, accused, charged of, or convicted for, committing any offence but only for the reason that they are mentally ill.
The decision to jail them was made based on an instant assessment of their mental health. This Court held that the admission of such mentally ill persons to jails was illegal and unconstitutional. This Court also directed that hospitals shall be immediately upgraded, psychiatric services shall be set up in all teaching and district hospitals, including filling posts for psychiatrists, and integrating mental health care with the primary health care system.
In PUCL v. Union of India, the petitioner submitted that the right to livelihood implies that the State has a duty to provide food to people. In a series of orders, this Court identified government schemes which constituted legal entitlements of the right to food and outlined the manner of implementing these schemes.
My learned brother relies on the example of Article 19(1)(d) to buttress his point. He states that in the absence of a law which casts a duty on the State to provide transportation through roads, a citizen cannot approach the court and seek the construction of a road to enforce the right to move freely.
The opinion of my learned brother fails to have noted the judgment of a three-Judge Bench of this Court in State of Himachal Pradesh v. Umed Ram Sharma. In this case, a letter petition was written to the High Court claiming that the construction of a road which would benefit the residents of the village and in particular, the members of the Dalit community was stopped by the State. The High Court directed the Superintending Engineer of the Public Works Department to complete the construction of the road.
This Court dismissed the appeal against the judgment of the High Court observing that the Constitution places a duty on the State to provide roads for residents of hilly areas because access to roads is encompassed in their right to secure a quality life. This Court recognised that the right under Article 21 of the Constitution is violated if the State does not build roads for effective communication and transportation.
Thus, even in the absence of a law which requires the State to build roads, such a duty was imposed on the State on an interpretation of Part III of the Constitution. Moreover, in the present case, the petitioners are demanding equal access to something which does exist (i.e., the entitlements which flow from the right to form an abiding cohabitational union). In fact, my learned brother himself recognizes this when he holds that the actions of the state have the effect of discriminating against queer couples. The example under Article 19(1)(a) is unconvincing for similar reasons.
Bhat, J. holds that:
(i) the legal dimension of marriage in USA is different from the legal dimension of marriage in India;
(ii) the legality of a marriage in USA is solely dependent on a validly obtained license;
(iii) in India, the legal status of a marriage stems from personal law and customs; and
(iv) the terms of marriage are set, to a large extent, independently of the state.
While there is no doubt that marriage predates the state and the existence of what we now consider ‘law’, I am unable to agree with the conclusion of my learned brother that the status of a marriage in India stems only from personal law and customs and that the terms of marriage are largely set independently of the state, for two reasons:
First, the legal status of a married couple stems from statute. Once the state began regulating marriage, the validity (and consequently, the ‘status’) of marriage is traceable to law. While law may provide that a marriage is valid if it was performed in accordance with custom, it is beyond cavil that the only reason that a custom is relevant (for the purposes of law) is because of law itself.
Therefore, it is law (through statutes) that accords significance to personal law and customs and it is statutes that may (and often do) deviate from personal law and customs.
Second, the number of legislations which govern marriage as well as the detailed framework which they set out makes it immediately evident that the terms of marriage are not set independently of the state, but by the state itself. From divorce to custody to maintenance to domestic violence and offences, almost every aspect of marriage is regulated by the state.
Thus, marriage as an institution cannot anymore be viewed as solely traceable to customs and traditions after the State’s interference to regulate the institution. The State’s reformation of the institution has slowly but evidently changed the nature of the institution itself. Under the Constitution, the state is empowered to reform social institutions including marriage in line with constitutional values.
Contrary to what is stated in the judgment of Bhat, J., the directions in my judgment do not require the state to create social or legal status, or a social institution. The directions are with a view to recognizing the choice that a person makes for themselves when they choose another to be their partner for life. The directions seek to make that choice a meaningful one. Nowhere do they create an institution of any kind. Rather, they give effect to the fundamental rights in Part III of the Constitution.
This is the mandate of this Court under Article 32 –
“The Supreme Court shall have power to issue directions or orders or writs … for the enforcement of any of the rights conferred by this Part.”
In fact, Bhat, J. himself recognizes that courts often enable and oblige the state to take measures. My learned brother also arrives at the conclusion that the state is indirectly discriminating against the queer community but fails to exercise the power vested in this Court by Article 32 to alleviate this discrimination in any way.
This Court is not through judicial diktat creating a legal regime exclusively for persons of the queer community but merely recognising the duty of the State to recognise the entitlements flowing from exercising the right to choose a life partner
Bhat, J. states that no one has contended that two queer persons have the right of a sustained partnership which is traceable to Articles 19(1)(a), (c), (d) and the right to conscience under Article 25. This is not true, as demonstrated by the segment of this judgment on the submissions made by the petitioners.
Bhat, J. has held that:
a. The classification in a legislation is to be discerned by gathering the object sought to be achieved by the enactment. The object of the SMA was to enable inter-faith heterosexual marriage. The classification is therefore between same-faith heterosexual couples and inter-faith heterosexual couples. It does not discriminate against queer persons; and
b. The test for discrimination is not the object of the statute but its effect and impact. The effect of the state regulating marriage only for heterosexual couples is that it “adversely impacts” them, “results in their exclusion,” “results in denial of entitlements / benefits,” and that “this injustice and inequity results in discrimination.” The state must address “this deprivation” and take “remedial action.”
My learned brother contradicts himself when he holds that the SMA is not discriminatory by relying on its object, on the one hand, and that the state has indirectly discriminated against the queer community because it is the effect and not the object which is relevant, on the other. My learned brother discusses in detail the deprivation, exclusion, and discrimination faced by the queer community. In effect, he:
(i) recognizes that they have a right not to be discriminated against; and
(ii) holds that the actions of the state have the effect of discriminating against them.
However, he does not take the step which logically follows from such a ruling which is to pass directions to obviate such discrimination and ensure the realization of the rights of the queer community. I cannot bring myself to agree with this approach. The realization of a right is effectuated when there is a remedy available to enforce it.
The principle of ubi jus ibi remedium (that is, an infringement of a right has a remedy) which has been applied in the context of civil law for centuries cannot be ignored in the constitutional context. Absent the grant of remedies, the formulation of doctrines is no more than judicial platitude.
Bhat, J highlights that the central question which arises for the consideration of this Court is whether the absence of law or a regulatory framework, or the failure of the State to enact law, amounts to discrimination that is protected under Article 15. He states that “there is no known jurisprudence or case law (yet) pointing to the absence of law being considered as discrimination as understood under Article15.”
Here, I would like to sound a note of caution (which, though obvious, bears repetition) – the manner in an issue is framed impacts the analysis of the issue. In fact, Bhat, J’s reasoning deviates from the jurisprudence that this Court has developed on the interpretation of Article 15. Bhat, J’s reasoning assesses the ‘objective’ of a law instead of its ‘effect. This is best understood with the help of an example. Suppose the state were to enact a law which enabled only citizens of a particular caste to avail the services of a particular government hospital but which did not expressly prohibit members of other castes from availing its services.
This law contains various conditions which must be satisfied before services of the hospital can be availed (such as a list of diseases which it treats or how advanced a particular disease is). This law can be understood as being an “enabling law” or a law which “regulates” or it can be understood (in its true sense) as a law which has the effect of excluding certain groups on the basis of prohibited markers of identity.
This remains true not only of a hospital but of any service or scheme or institution that one can imagine. Hence, what is framed as the “absence of a law” or an “enabling law” can have the same restrictive effect as a law which expressly bars or prohibits certain actions or excludes certain groups.
I disagree with the observations of my learned brother that the State has a positive obligation under Article 21 but such an obligation cannot be read into other fundamental rights other than Article 21.
Bhat, J. distinguishes the judgments in Vishaka v. State of Rajasthan (1997), and NALSA (supra) from the present case by holding that in each of these cases, directions were passed because the “inadequacies … were acute and intolerable” and faced by “entire groups.” However, he does not explain why the inadequacies faced by the queer community in this case are mild or tolerable.
There is neither a test nor standard known to law by which discrimination, or the violation of a fundamental right, must reach a level of intolerability for this Court to exercise its jurisdiction. Regardless of the severity of the violation, it is the duty of this Court to protect the exercise of the right in question. Further, in this case too, the rights of an “entire group” (being the queer community) are at issue.
The opinion of Bhat, J. highlights that the reading of the Adoption Regulations to permit unmarried couples to adopt would have ‘disastrous outcomes’ because the law, as it stands today, does not guarantee the protection of the child of unmarried parents adopting jointly. A reading of the numerous laws relating to the rights of children qua parents indicates that the law does not create any distinction between children of married and unmarried couples so long as they are validly adopted.
Section 12 of the Hindu Adoptions and Maintenance Act 1956 states that an adopted child shall be deemed to be the child of their adopted parents for all purposes from the date of adoption. Similarly, Section 63 of the JJ Act also creates a deeming fiction. The provision states that a child in respect of whom an adoption order is issued shall become the child of the adoptive parents and the adoptive parents shall become the parents of the child as if the child had been born to the adoptive parents, including for the purposes of intestacy.
In view of the deeming fiction created by Section 12 of the Hindu Adoptions and Maintenance Act 1956 and Section 63 of the JJ Act, an adopted child is a legitimate child of the adopting couple. The manner of determination of legitimacy prescribed by Section 112 of the Indian Evidence Act 1872 shall not apply in view of the deeming fiction created by Section 12 of the Hindu Adoptions and Maintenance Act 1956 and Section 63 of the JJ Act.
Thus, all the benefits which are available under the law to a legitimate child (who has been validly adopted) of a married couple will equally be available to the legitimate child of an unmarried couple. For example, Section 20 of the Hindu Adoptions and Maintenance Act 1956 which provides that a Hindu is to maintain their children does not make any distinction between a legitimate child of a married and an unmarried couple.
Similarly, succession law in India does not differentiate between the child of a married and an unmarried couple if the child has been adopted by following the due process of law. Further, the breakdown of the relationship of an unmarried couple will not lead to a change in applicable law because the child will continue to be a legitimate child even after the breakdown of the relationship. It is therefore unclear what the ‘disastrous outcomes’ referred to, are.
My learned brother has also failed to address whether Regulation 5(3) is discriminatory for distinguishing between married and unmarried couples for the purpose of adoption and for the disproportionate impact that it has on the members of the queer community while simultaneously holding that “the State cannot, on any account, make regulations that are facially or indirectly discriminatory on the ground of sexual orientation.”
Supriya @Supriyo Chakraborty v. Union of India (2023)
 (2002) 5 SCC 294
 2 (1993) 4 SCC 204
 WP (Civil) No. 196/2001
 (1986) 2 SCC 68