In a significant judgment on marriage equality, Chief
Justice of India DY Chandrachud remarked that an individual’s right to enter
into a union cannot be restricted on the basis of sexual orientation.
Supporting adoption rights for queer couples, he said
there is nothing to investigate that only heterosexual couples can provide secure
future and stability to a child.
Emphasizing that the five-judge Bench hearing the issue
has authored four separate judgments, the Chief Justice asked the Centre should
proceed with a committee it has constituted to address practical concerns of
same-gender couples, such as getting ration cards, pension, gratuity and
succession issues.
The Centre had on May 3 told the court that it plans to
set up a committee headed by a cabinet secretary to explore administrative
solution to problems faced by same-sex couples without delving into the
marriage equality question.
Choosing a life partner is an integral part of
choosing one’s course of life, CJI Chandrachud said.
“Some may regard this as the most important decision
of their life. This right goes to the root of the right to life and liberty
under Article 21,” he said.
“The right to enter into union includes the right to
choose one’s partner and the right to recognition of that union. A failure to
recognise such associations will result in discrimination against queer
couples,” he said, adding, “the right to enter into union cannot be restricted
on the basis of sexual orientation”.
Disagreeing with the Centre’s argument that marriage
equality is an urban, elite concept, CJI Chandrachud said, “Queerness is not
urban elite. Homosexuality or queerness is not an urban concept or restricted
to the upper classes of the society.”
Justice Kaul consented with the Chief Justice that
there is a requirement for an anti-discrimination law.
“Same-sex relationships have been recognised from
antiquity, not just for sexual activities but as relationships for emotional
fulfilment. I have referred to certain Sufi traditions. I agree with the
judgment of the Chief Justice. It is not res integra for a constitutional court
to uphold the rights and the court has been guided by the constitutional
morality and not social morality. These unions are to be recognised as a union
to give partnership and love,” he said.
Justice Bhat agreed that queerness is “neither urban
nor elitist”, but added that he disagrees with the Chief Justice’s directions.
“The judgment of the Chief Justice propounded a theory
of a unified thread of rights and how lack of recognition violated rights.
However, when the law is silence, Article 19(1)(a) does not compel the State to
enact a law to facilitate that expression,” he said.
Justice Bhat said the court cannot create a legal
framework for same gender couples and it is for the legislature to do as there
are multiple aspects to be taken into consideration.
Earlier, the Chief Justice disagreed with Justice Bhat’s
approach. “My learned brother acknowledges the discrimination against the queer
couples but does not issue directions. I cannot come to terms with such an
approach.”
NE Watch Desk
