While the Chief Justice of India Dr D.Y. Chandrachud has recognised the right to form civil unions along with Justice Kaul; the other three judges are against it. All five held that there is no fundamental right to marry for gender and equality minorities.
—
THE judgment in a batch of petitions demanding marriage equality for non-heterosexual couples was pronounced today.
The Constitution Bench of five judges headed by the Chief Justice of India (CJI) Dr. D.Y. Chandrachud and also comprising Justices S.K. Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha decided in the matter of Supriyo@Supriya Chakraborty versus Union of India and wrote four separate opinions.
The Bench held by 5-0 that there is no fundamental right to marry.
While the CJI and Kaul have recognised a right to form intimate associations under Article 19(1)(e), Justices Bhat, Kohli and Narasimha have held that they do not even have a right to form a union.
The court took into consideration the submission of the Solicitor General of India Tushar Mehta that the State would constitute a committee to determine the legal and social issues faced by the queer community in their everyday lives.
On Day 7 of the hearing, Mehta had suggested the formation of a committee headed by no less than the cabinet secterary.
Opinion of Justice Bhat
Justice Bhat rejected the contentions of the petitioners that they have a fundamental right to marry. He held that marriage has historically been solemnised as per customs and personal laws only.
He also disagreed with the recognition of intimate associations or civil unions.
Justice Bhat termed this right as the right to form relationships which extend to cohabitation and enjoyment of physical intimacy. This, he added, is linked to privacy and dignity rights.
However, he added that such rights cannot be elevated to the threshold where the State is obligated to recognise a bouquet of rights flowing from the unions.
He added that unlike heterosexual marriages and unions, where it is in the interest of the State to regulate it, non-heterosexual unions accrue no equivalent State interest and that is why he could not agree with the CJI and Justice Kaul’s opinion on this point.
Justice Bhat agreed with the CJI that queerness is not an “urban elitist” concept. However, he did not agree to the directions issued by the CJI.
Largely agreeing with the CJI that the Special Marriage Act, 1954 cannot be held unconstitutional for denying the right of marriage to non-heterosexual couples, Justice Bhat added that the Act cannot be interpreted to enable the queer persons’ right to marriage. For the same reason, it cannot be read down to recognise same sex marriage.
He also held that the Act cannot be interpreted to include the rights of transgender persons under it. The CJI has held that the rights of transgender persons in heterosexual relationships should be recognised under the Act.
Justice Bhat disagrees with Justice Kaul on the purpose of Special marriage Act. While the former held that the Act was enacted for the purpose of solely recognising heterosexual marriages, Justice Kaul says that the Act does not specify sexual orientations to which it would apply.
Opinion of Justice Kaul
Justice Kaul agrees with the CJI and Justice Bhat that there are difficulties in reading in non-heterosexual marriages into the Special Marriage Act.
Justice Kaul acknowledged the contention of Mehta that expanding the scope of marriage under the Special Marriage Act would have a cascading effect across disparate laws.
While the CJI termed those associations as ‘intimate associations,’ Justice Kaul categorised it as civil unions as relationships that foster love and mutual care for each other.
He said that non-heterosexual unions must be considered at par with heterosexual unions both in terms of recognition and consequential benefits that arise out of them.
Justice Kaul added that the only difference between the two unions is the absence of a regulatory framework for non-heterosexual unions.
But, he added that the mere recognition is a step towards marriage equality.
Justice Kaul concurred with the CJI’s opinion on the need to have a separate law recognising the discrimination against queer persons. The CJI, in his opinion, also held that the term ‘sex’ must include ‘sexual orientation’ for the purpose of the anti-discrimination law framework stipulated in Articles 14 and 15 of the Constitution.
Opinion of Justice Narasimha
Justice Narasimha agreed with the opinion of Justice Bhat that in all previous decisions of the Supreme Court such as Navtej Singh Johar versus Union of India, the question of marriage equality did not arise.
He added, that as a consequence of this, there cannot be a binding obligation on this court to recognise the right to marry.
Justice Narasimha also stated that the institutional space of marriage is conditional and is occupied for legislative intervention, customary practices and religious beliefs. This is a product of social and constitutional realities.
Justice Kohli
Justice Kohli, the only woman on the Bench, agreed with the CJI and Justice Kaul that there is no fundamental right to marry or form civil unions. However, she did not give a separate opinion.
