The Supreme Court judgment on same-sex marriages raised hope on allowing adoption by unmarried and queer couples, only for it to be dashed minutes later when three of the five judges on the bench disagreed with Chief Justice Of India DY Chandrachud and Justice SK Kaul on the issue.
As he began reading out his judgment, Chief Justice DY Chandrachud said the five-judge bench would deliver four separate judgments and “there is a degree of agreement and a degree of disagreement” between the judges. The disagreement, he said, was on how far the court should go.
The bench is headed by the Chief Justice and also comprises Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha. As the judgments began to be read out, it became clear that the judges agreed that granting legal recognition to same-sex marriages was an issue best left to the legislature and that the Special Marriages Act could not be read down.
They also 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.
A crucial area where the judges disagreed, however, was whether unmarried and queer couples had the right to jointly adopt a child.
Reading out his judgment, Justice Chandrachud observed that the right to enter into a union cannot be restricted on the basis of sexual orientation and ruled that unmarried couples, including queer couples, can jointly adopt a child. He said that the law cannot assume that only heterosexual couples can be good parents and that doing so would amount to discrimination.
Referring to the Central Adoption Resource Authority (CARA) guidelines for adoption, the Chief Justice said the Juvenile Justice Act does not preclude unmarried couples from adopting and the Union of India has also not proved that doing so is in the best interest of the child. “So CARA has exceeded its authority in barring unmarried couples,” Justice Chandrachud said.
Stating that differentiating between married couples and unmarried couples has no “reasonable nexus” with the objective of CARA, which is ensuring the best interests of the child, the Chief Justice said, “It cannot be assumed that unmarried couples are not serious about their relationship. There is no material on record to prove that only a married heterosexual couple can provide stability to a child.”
Justice Chandrachud also noted that CARA Regulation 5(3) indirectly discriminates against atypical unions. “A queer person can adopt only in an individual capacity. This has the effect of reinforcing the discrimination against the queer community,” he said, adding that the CARA circular is violative of Article 15 of the Constitution.
Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth.
While Justice Sanjay Kishan Kaul agreed with the Chief Justice on adoption, Justice Chandrachud said he has a disagreement with the judgment of Justice S Ravindra Bhat.
The Chief Justice said that, contrary to Justice Bhat’s judgment, directions in his judgment do not result in the creation of an institution but give effect to the fundamental rights under Part III of the Constitution.
“My learned brother (Justice Bhat) also acknowledges that the State is discriminating against the queer community but does not exercise the powers under Article 32 to alleviate their plight,” Justice Chandrachud said. Article 32 confers powers on the Supreme Court to issue orders for the enforcement of fundamental rights.
In his judgment, which is the majority judgment since Justices Hima Kohli and PS Narasimha agreed with it, Justice Bhat said he disagreed with the Chief Justice on the right of queer couples to adopt and that he had certain concerns. He said that Regulation 5(3) of CARA could not be held unconstitutional.
“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 (legal protector) has to explore all areas and to ensure all benefits reach the children at large in need of stable homes,” he observed.