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Delhi HC questions Centre on exclusion of queer couples from medical consent rights
The bench sought justification while dealing with a plea filed by Arshiya Takkar, a queer individual, seeking directions to the Centre to frame guidelines.
The Delhi high court on Thursday asked the Centre to clarify the rationale behind excluding unmarried and same sex couples from giving consent on their partner’s behalf for medical treatment/emergencies, saying that it saw no valid justification for such exclusion.
A bench of justice Sachin Datta sought justification while dealing with a plea filed by Arshiya Takkar, a queer individual, seeking directions to the Centre to frame guidelines allowing same-sex partners to give consent in medical situations/emergencies.
In her plea, Takkar had asserted that the absence of a clear legal framework rendered such couples powerless to make critical medical decisions for their partners.
This was after Centre’s counsel Monika Arora argued that the Indian law did not recognise marriage between same sex couples and the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 (2002 regulations), also prohibited unmarried heterosexual couples from granting such consent.
To be sure, 7.16 of the 2002 Regulations mandates consent for medical procedures/treatment from a husband or wife, parent or guardian in the case of a minor or the patient himself.
Arora further said the regulations were equally applicable to all unmarried couples and did not discriminate between heterosexual and non-heterosexual couples. “Same sex marriage is not recognised in India. Whatever is available to everyone who is not married, is available to them (same sex couple),” Arora said.
However, justice Datta said, “Take a situation where one is living all by themselves or even (unmarried) hetrosexual partners... I don’t see any reason as to why this regime should not be available (to unmarried couples or queer couples). I will issue a notice. You file your reply.”
Takkar’s petition, argued by senior advocate Saurabh Kirpal, painted a picture that the lack of explicit recognition and exclusion of same sex couples from the 2002 Regulation creates a disparate impact by denying them entitlements that flow from their union, which are readily available to heterosexual couples.
“The 2002 Regulations by restricting medical decisions making rights to heterosexual couples or to normative family members, perpetuates a restrictive framework that fails to recognise the dignity and autonomy of LGBTQIA+ or queer couples, as valid familial units, which is inconsistent with the constitutional protections,” the petition stated.
Kirpal argued that even though the Supreme Court while refusing to recognise same sex marriage in October last year, had recognised their fundamental right to a relationship including all facets of a relationship, the Centre failed to take expeditious measure to redress the indirect discriminatory impacts of such exclusion.
The senior lawyer further argued that limiting medical representatives to only husband, wife or parents, was arbitrary and lacked a reasonable nexus.
The plea further highlighted that the law fails to recognise that several members of LGBTQIA+ face alienation, strained relationships with their blood family. “Insistence of such representatives to only husband, wife or parents in the normative understanding fails to take into account the fact that several members of the LGBTQIA+ face alienation/strained relationship with their blood family, and may want non-family members, who would in fact be better placed to take crucial decisions on behalf of such persons, to be their representatives in dire moments,” the plea stated.
On October 17, 2023, the Supreme Court by a 3-2 majority, declined to grant same-sex couples legal recognition for marriages or civil unions, stating that the issue fell within the legislative domain. The majority opinion, penned by justices Bhat, Kohli and Narasimha, held that extending the right to marry or enter civil unions to queer couples was not a constitutionally protected mandate.
However, the dissenting opinions of CJI Chandrachud and justice Kaul emphasised the constitutional rights of queer individuals to form unions and adopt children, bemoaning the exclusion of non-heterosexual couples from existing legal frameworks. The judges ruled that the State is under an obligation to recognise such unions and grant them a bouquet of benefits.
Following the Supreme Court’s ruling, the union finance ministry last year had clarified that queer individuals can open joint bank accounts, nominate queer partners as nominees to receive the balance in their account in the event of the partner’s death.
