Same-sex marriage verdict: Why the Supreme Court’s minority order raised hopes
The justices, through their judgments, granted queer couples series of rights - ability to adopt child, rights related to succession and maintenance, and more.
The minority judgment of the Supreme Court in the same-sex marriage case embarked on an expansive jurisprudential journey in its zealous endeavour to forge a right for the queer community to enter into a civil union, holding it to be the key to the fulfilment of their existing rights and entitlement of a raft of other benefits available to heterosexual couples.
Through their judgments, the justices gave queer couples a series of potential rights -- to adopt a child, to succession and maintenance, to pension and gratuity, to end-of-life medical decisions -- only for the majority judges to overrule an order that the community would have perceived as a significant step.
Authored separately by Chief Justice of India (CJI) Dhananjaya Y Chandrachud and Justice Sanjay Kishan Kaul, the judgment held that it is insufficient for the State to hold that queer couples are not legally prohibited from cohabitation or living as couples when the full enjoyment of such relationships makes it necessary that the State accord recognition to such relationships.
“Thus, the right to enter into a union includes the right to associate with a partner of one’s choice, according to recognition to the association, and ensuring that there is no denial of access to basic goods and services is crucial to achieving the goal of self-development,” noted the CJI’s judgment.
The CJI interpreted three provisions under Article 19 – right to freedom of speech and expression, right to form association, and right to settle in any part of India, to declare that the right to enter into a civil union is a constitutionally protected right, obligating the State to recognise it and ensure an array of benefits.
“The freedom to choose a partner and the freedom to enjoy their society which are essential components of the right to enter into a union (and the freedom of intimate association) would be rendered otiose if the relationship were to be discriminated against. For the right to have real meaning, the State must recognise a bouquet of entitlements which flow from an abiding relationship of this kind. A failure to recognise such entitlements would result in systemic discrimination against queer couples,” held Justice Chandrachud.
Highlighting the regard for the autonomy, privacy, freedom to choose and well-being of the queer community, the 247-page judgment by the CJI maintained that 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, said the CJI, adding an abiding cohabitation relationship which includes within its fold a union of two individuals who cannot be discriminated against on the basis of sexual orientation.
“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...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,” Justice Chandrachud declared in his judgment.
Also holding that the right to enter into a union cannot be restricted based on sexual orientation, the judge underscored that such a restriction would breach Article 15 of the Constitution which states that no citizen shall be discriminated against based on “religion, race, sex, place of birth, or any of them.”
Justice Chandrachud then proceeded to issue a series of directions to protect same-sex unions from interference by the State, or in some cases, parents even as the judge cited “institutional limitations” to hold that such relationships cannot be granted legal recognition or protection under the Special Marriage Act.
Justice Kaul, penning a separate judgment, agreed with the CJI on recognising queer relationships as civil unions.
“Although no such provision exists in the Indian Constitution, our courts are no stranger to interpreting statutory laws through fundamental rights...This technique of reading in Constitutional values should be used harmoniously with other canons of statutory interpretation. In this context, legislations that confer benefits on the basis of marriage should be construed to include civil unions as well, where applicable,” said the judge.
According to Justice Kaul, non-heterosexual unions and heterosexual unions ought to be considered as two sides of the same coin, both in terms of recognition and consequential benefits. “The only deficiency at present is the absence of a suitable regulatory framework for such unions. I believe that this moment presents an opportunity of reckoning with this historical injustice and casts a collective duty upon all constitutional institutions to take affirmative steps to remedy the discrimination,” said the judge.
Noting that recognition of civil unions may give rise to an edifice of governance for meaningful realisation of the rights of queer couples, Justice Kaul asserted that incidental legislations and regulations pertaining to marriage should henceforth be read in a manner to give effect to this right, together with the principle of equality and non-discrimination under Articles 14 and 15.
“Legal recognition aids social acceptance, which in turn increases queer participation in public spaces. Through the medium of legal recognition, queer persons will have a greater opportunity to be ‘seen’ and ‘heard’ in ways not previously possible. Queer expression will help facilitate an expansive social dialogue, cutting across communities and generations. This dialogue will help us reimagine all our relationships in a manner that emphasises values such as mutual respect, companionship, and empathy,” added Justice Kaul. He also favoured a separate “anti-discrimination” law to prohibit discrimination on the basis of sexual orientation, regretting marginalised communities are still facing several challenges.
The capacity of non-heterosexual couples for love, commitment and responsibility, the judge said, is no less worthy of regard than heterosexual couples. “Let us preserve this autonomy,” said Justice Kaul, concluding his judgment with a line from Bohn Jovi’s popular track - “It’s my life.”
Clearly, the two judges made an endeavour to open a window of legal rights and entitlements for the queer couples by juxtaposing civil unions with some of the well-cherished fundamental rights, but the majority remained in disagreement.
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