New Delhi:

The Supreme Court today stopped short of legalising marriage equality, but stressed that an individual’s right to enter into a union cannot be restricted on the basis of sexual orientation. The five-judge bench came up with four judgments, differing primarily on the question of adoption rights for queer couples. 

The judges asked the centre to proceed with the formation of a committee to address practical concerns of same-sex couples, such as getting ration cards, pension, gratuity and succession issues.

The centre had on May 3 told the court that it plans to form 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.

The bench gave a 3-2 judgment on the question of adoption rights. Chief Justice of India DY Chandrachud and Justice SK Kaul recognised the right of queer couples to adopt, while Justice S Ravindra Bhat, Justice PS Narasimha and Justice Hima Kohli disagreed.

“There is a degree of agreement and a degree of disagreement on how far we have to go. I have dealt with the issue of judicial review and separation of powers,” he said, Justice Chandrachud said.

Choosing a life partner is an integral part of choosing one’s course of life, the Chief Justice 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,” the Chief Justice 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, the Chief Justice said, “Queerness is not urban elite. Homosexuality or queerness is not an urban concept or restricted to the upper classes of the society.”

Supporting adoption rights for queer couples, he said there is nothing to probe that only heterosexual couples can provide stability to a child. “There is no material on record to prove that only a married heterosexual couple can provide stability to a child,” he said, adding that the Central Adoption Resource Authority “exceeded its authority” in barring adoption by same-sex couples.

Justice Kaul agreed with the Chief Justice that there is a need 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 does not agree 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 queer couples and it is for the legislature to do as there are several aspects to be taken into consideration.

On the issue of adoption, Justice Bhat said they disagree with the Chief Justice on the right of queer couples to adopt. “We voice certain concerns. This is not to say that unmarried or non-heterosexual couples can’t be good parents… given the objective of section 57, the State as parens patriae has to explore all areas and to ensure all benefits reach the children at large in need of stable homes.”

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.”

The judges agreed that the court should not try to tweak the Special Marriage Act as it would amount to encroaching into the legislature’s domain.

“The court cannot strike down the Special Marriage Act or read words into the law due to institutional limitations. The court cannot read words into allied laws like the Succession Act as it would amount to legislation,” the Chief Justice said.

Justice Kaul agreed. “I have said that the Special Marriage Act is violative of Article 14. But there are interpretative limitations in including homosexual unions in it. As rightly pointed by Solicitor General, tinkering with Special Marriage Act can have a cascading effect,” he said.

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