October 29, 2023

Disappointing Verdict on Recognition of Same Sex Marriages: AIDWA

Below we publish the statement issued by the All India Democratic Women’s Association (AIDWA), on October 21

THE constitutional court judgment of the SC in the batch of petitions asking for recognition of same sex marriages has disappointingly held that there is no fundamental right to marry or to live together in a civil union with all the consequential benefits. The verdict is a huge setback to the LGBTQ+ couples who face several forms of discrimination in their daily lives since the law doesn’t recognise them as couples. It therefore denies them the right to form a family, to adopt children, have a legal right to represent each other in various situations plus entitlements to financial benefits like gratuity, pension, inheritance and other material entitlements. Even the right to reside in India for a foreign LGBTQ+ spouse is not available. The legal non-recognition also means that couples continue to face various forms of discrimination such as violence and oppression in their daily lives.

Though all the judges accepted that discrimination against same sex couple must end, the majority judgment led by Justice SR Bhat held that a legal recognition of their right even to form a civil union can only be conferred by the legislature. This judgment went no further than the judgment in Navtej Johar which had already held that love and companionship in persons of same gender was natural and recognised the duty of the State to end discrimination faced by the queer community. The court has taken a very narrow and technical view of the powers conferred upon it by the constitution in holding that it cannot hold a discriminatory statute violative of the constitution.

The minority judgment of Chief Justice Chandrachud while recognising that “the freedom to choose a partner and freedom to enjoy their society,…would be rendered otiose if the relationship were to be discriminated against” only gave same-sex couples the right to have their partnership recognised as a civil union. He recognised the ability to choose one’s partner and to build a life together as a part of the right to life under Article 21, and as enjoined by various other articles in the constitution including the equality clause but stopped short of saying that same-sex couples as a result have a right to marry. He refused to hold the Special Marriage Act unconstitutional and violative of the petitioner’s rights as it did not allow marriage of non-heterosexual couples.

Importantly the minority judgment, by quoting several texts, held that same sex love was natural and existed from time immemorial and in India today exists in all classes. It further held that such relationships are not an elite phenomena and are present in both urban and rural areas. The minority judgment then held that the State should recognise a civil union and a bouquet of entitlement which flow from an abiding relationship of this kind. Having said this, he left the scope of the benefits which would accrue to such couples to a government committee chaired by the union cabinet which is yet to be constituted. The majority judgment of Justice Bhat also left the question of rights of the petitioners raised in the petitions to be discussed by the high-powered committee and decided by the parliament.

Chief Justice Chandrachud gave a list of comprehensive directions to union government, state governments and union territories to tackle violence and discrimination against queer couples. He also gave directions to the police machinery to protect queer couples and not allow their family members to persecute them. He also asked for safe houses where queer couples could seek shelter if necessary. He also held that the committee of the government which was to be constituted should work in tandem with members of the queer community and other domain experts. He suggested that the committee give benefits to same-sex couples like ration card, facility of a joint bank account, the right to be named as nominees in these accounts, and to be considered next of kin in medical procedures, in jail visitations and right to access the body of deceased partner and arrange last rites. However, Justice Bhat’s judgment which was agreed to by Justice Hima Kohli and Justice Narsimha refused to even agree with these directions. It surprisingly held that previous cases in which the SC gave directions were because “the inadequacies…were acute and intolerable”. Justice Bhat did not explain why the constant violence, harassment and discrimination faced by the LGBTQ+ community was not as egregious as the inadequacies earlier faced.

The judgment recognised that transgender persons in heterosexual relationships have the freedom and right to marry under the existing statutes. This would mean that a transman can marry a transwoman; a cis-woman can marry a transman and cis-man can marry a transwoman.

One good relief that the minority judgment of Justice Chandrachud gave to the petitioners was the right to adopt children by unmarried couples (including queer couples) by holding that Regulation 5(3) of the Adoption Regulations is ultra vires the JJ Act and Article 14 and 15 Constitution. The minority judgment read down Regulation 5(3) to exclude the word ‘marital’ and further to infer married and unmarried couples including queer couples. The minority judgment of the chief justice and Justice Kaul also specified that a CARA circular of 2022 which made couples in live-in relationship ineligible to adopt was violative of Article 15. However even this right to adopt children was denied by the majority judgment.

AIDWA states that this judgment is not only disappointing but is a missed opportunity by the court to come to the aid of the LGBTQ+ community and grant them the rights they are entitled to as equal citizens of the country. AIDWA demands that the committee to be setup by the government should give the LGBTQ+ community all the rights which are enjoyed by the heterosexual couples in our country.