In this, the third part of the series on the Marriage Equality Verdict, the reasoning employed by the majority three judges to deny the right to an abiding civil union will be discussed. The concept of Civil union was proposed by the Chief Justice of India (CJI) DY Chandrachud in his minority opinion,

The majority judgement, despite its careful usage of examples to substantiate its arguments, does not fare well in the reasoning it employs to deny the flow of rights. The CJI traced the right to enter an abiding civil union to Articles 19, 21 and 25. In opposition to this tracing, the majority judgement only recognizes a paltry right to relationship withing just Article 21.

First, there is a complete absence of reasoning as to why the rights such as Right to form Association or Right to Settle in any part of India does not give rise to right to civil union. There are examples but not the ones relevant to the case.

For example, a poetess wanting the state to create infrastructure to publish her poem (an example used by Justice Bhat) is not the same as a transperson wanting the state to sensitise its police force to not harass them. How are these two different? The police are a monopoly entity in maintaining the security of the land while the poetess can get numerous avenues to publish her poetry.

In NALSA vs. Union of India [(2014) SCC 438] Court held that public awareness programmes were required to tackle existing stigma against the transgender community. It also directed the Central and State Governments to take several steps for the advancement of the transgender community. The same way, a man asking the government to construct a house under 19(1) (e) is not same as a gay couple wanting the state to make provisions that would make discrimination against them by private persons in giving a property on rent, illegal.

There is no cogent reasoning on why the right to a civil union should not flow from Article 25 in Justice Bhat’s opinion. Justice P.S. Narasimha, in his opinion, disagrees with the CJI’s’ argument that a right to a civil union flows from Article 25. It is in this opinion that we find reasoning as to why such right cannot flow from Article 25. He states that if CI’s interpretation is allowed, the enumerations in Article 19 become redundant since these freedoms can be claimed to be actions on the basis of one’s own moral judgement under Article 25 and freedom of conscience.

However, it is well settled jurisprudence through Supreme Court judgement in the case of RC Cooper vs. Union of India [AIR 1970 SC 564], that the idea of fundamental rights being watertight compartments which do not interact with each other has been discarded and the court’s decision in RC Cooper has been affirmed by the Supreme Court in Maneka Gandhi vs. Union of India [(1978) 1 SCC 248]. This has been reiterated in Justice DY. Chandrachud (as he was then) in his opinion, in Justice K.S. Puttuswamy vs. Union of India [(2017) 10 SCC 1)].

Therefore, having similar kinds of rights in Article 25 and Article 19 does not make either of those articles redundant.  It rather enriches the rights under these Articles as having backed by two fundamental rights. Therefore, the reasoning that is given in the judgement is peculiar and seems almost forced towards the conclusion it powers.

Positive Obligation of the State- the extent?

While Justice Bhat’s opinion did not provide enough reasoning to oppose the flow of right to an abiding civil union from Articles 19 and 25, it deals plenty on why the state cannot be obligated to create a parallel institution because a certain right in Part III.

Justice Bhat disagreed with the consistent observation CJI made on state’s obligation to recognise the relations to give the enjoyment of rights a full meaning. He agreed with the CJI on the fact that the rights have both positive obligation on part of the state and a negative content where there are restrictions on state power. However, he states that the extent of positive obligation differs. In the cases where the court expanded the scope of fundamental rights and asked the state to perform a duty, Justice Bhat stated that, were based on effect of laws or policies based on statutory provisions.[1] To order a social institution or re-arrange existing social structures by creating an entirely new kind of parallel framework for non-homosexual couples requires a completely new code.[2]

On the argument that the Supreme Court in the cases of Common Cause vs. Union of India [(2018) 5 SCC 1], NALSA vs Union of India [(2014) 5 SCC 438] and Vishaka vs. State of Rajasthan [(1997) 6 SCC 241)] -Justice Bhat gave a reasoning as to why those cannot be relied upon in the current situation.

In Common Cause, the Court reaffirmed the right to die with dignity as a fundamental right. Apart from that, the court also dealt with judgement in the case of Gian Kaur vs State of Punjab [1996 SCC(2) 648] stating that euthanasia could be made lawful only by legislation and later relied on by Aruna Ramchandra Shanbaug vs. Union of India[(2011) 4 SCC 454)]. The court stated as follows: “The two-Judge bench in Aruna Shanbaug (supra) has erred in holding that this Court in Gian Kaur (supra) has approved the decision in Airedale case and that euthanasia could be made lawful only by legislation.”

For Common Cause, Justice Bhat argued that not only was it more of a judgement that dealt with workability and need to elaborate the guidelines formulated in Aruna Shanbaug rather than forming new legislation, but it was also influenced by the Law Commission recommendations which formed additional basis for the Court’s discretion and the final guidelines.

In Vishaka vs. State of Rajasthan, the Supreme Court laid down the guidelines against Sexual harassment at workplace and these guidelines were mandated to be followed by all organizations/institutions both in public and private sector. The Supreme court went on to define Sexual Harassment and duty of the employers etc. The Parliament took almost 15 years to enact legislation to give effect to the guidelines with a law, after the judgement in 1997.

For Vishaka, Justice Bhat argued that there was all round co-operation and Union of India too expressly indicated that guidelines ought to be formulated by the Court. The trigger for the guidelines in Vishaka, Justice Bhat stated, was a resolve that gender equality manifested in Articles 14 and 15 of the Constitution as well as right to dignity) and the right to one’s profession and employment under Article 19(1)(g) needed some express recognition to ensure protection from sexual harassment in a workplace. Justice Bhat argued that, the court also relied on international conventions etc to provide the impetus required. The reasoning provided in Justice Bhat’s opinion on why a Vishaka like process cannot be followed is also not as coherent apart from the one reason that Union of India provided full co-operation unlike the current case. There is no requirement that for a right to be recognised and facilitated by the court, the Union of India or anyone agrees to it. The court has to satisfy itself that such right need not be recognised irrespective of government’s stand, within the set constitutional limitations.

In NALSA vs. Union of India, the court held that public awareness programs were required to tackle stigma against the transgender community, directed the Central and State governments to take several steps for the advancement of the transgender community including making provisions for legal recognition of “third gender” in all documents and directed the State to operate HIV-Sero Surveillance centers etc to address the severe heath issues faced by many in the community. The court’s reasoning in NALSA was of prime importance in the Navtej Johar judgement. The court also directed the Centre and State governments to take steps to treat trans people as Socially and Educationally Backward classes of Citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments. These were all new guidelines, prompting the state to act in a certain way.

For NALSA, Justice Bhat does not specifically say why it cannot be relied upon but goes on to state that these three cases cannot be relied on in the current case since a completely parallel regime has to be fashioned by the court.

Conclusion

While all the judges agreed that there is discrimination against queer people in the country, the rights were not granted for the Queer people to overcome the discrimination. However, Justice Bhat’s opinion gave no structured reasons to why the extent of placing obligation on state to recognise a right to civil union is a point at which the line has to be drawn. And Justice P.S. Narasimha’s opinion almost brought back the pre-RC Cooper jurisrpudence such as Gopalan and Kharak Singh where fundamental rights were construed as individual rights rather than a collective code that interacts internally. The implications of both of these opinions, mainly with respect to rights jurisprudence and the obligations placed on the state, will have to be studied and deconstructed in academic discourse so that they can be efficiently countered in times to come.

(The author is a researcher with the organisation)

[1] Paragraph 61

[2] Paragraph 69

Related:

Do all Indians have the right to a civil union? Understanding the Marriage Equality Judgement – Part II

How fundamental are our rights? An examination of the judgement in the Marriage Equality Case: SC

The post Uneven reason in denial of flow of rights: Part III on Marriage Equality Judgement appeared first on SabrangIndia.

The judgement also states that transgender persons have the right to marry under the Special Marriages Act (SMA). The majority opinion by Justices Ravindra Bhat, Hima Kohli and P.S. Narasimha differed with the minority opinion of Chief Justice of India (CJI) D.Y. Chandrachud and Justice S.K. Kaul, on the issue of validity of adoption regulations that restricted unmarried couples to adopt children.

This article is the second part of a series that will explain and analyse the judgement with respect to different ways in which the judges reached their conclusions, the jurisprudence they created and sidelined, and the consequences of this judgement.

You can read part I of the series here. This one dealt with the court’s decision over fundamental right to marry. This part will deal with what the Court has said on the Right to enter into a Union.

The following were the issues decided by the court:

1. Whether the Right to Marry is a Fundamental Right or not.
2. Whether there is a Fundamental right to enter a Civil Union or not.
3. Whether the SMA is unconstitutional for excluding non-heterosexual persons from its scope or not.
4. Whether non-heterosexual marriage can be read within the framework of SMA or not.
5. Whether Transgender Persons have a right to marry under the SMA or not.
6. Whether the adoption Regulations that restrict unmarried non-heterosexual couples in adopting children are valid or not. 

Right to Enter a Union

While the court ruled that there is a no fundamental right to Marry, it had varying opinions on the right to enter a union and the obligation on state’s part to recognise such union. The CJI opined that there is a right to enter into an abiding civil union that can be traced to Articles 19, 21 and 25 and that the state is under obligation to give such relationships the due recognition to give meaning to the rights, Justice S.K. Kaul agreed with CJI’s opinion. The majority-consisting of Justices Ravindra Bhat, Hima Kohli and P.S. Narasimha disagreed with this construction of the right to a civil union or an abiding cohabitational relationship conferring a legally enforceable status under Fundamental Rights. Apart from agreeing to the reasons noted in Justice Bhat’s opinion, P.S. Narasimha gives additional reasons in his opinion regarding why there cannot be a right to a civil union within the Fundamental Rights having the effect of the state recognising it.

First, I will present the CJI’s opinion which forms the minority opinion and then the majority opinion. This is because the majority opinion regarding Right to Civil Union was a response to the system of rights propounded by CJI in his opinion.

There is a Right to a Civil Union or an Abiding Cohabitational Relationship- CJI DY Chandrachud

CJI Chandrachud traces the right to enter into a union other than marriage-since he had denied the fundamental right to marriage-to Article 19, 21 and 25. Before doing so, he relies on American Philosopher Martha Nussbaum to describe what it means to be Human to emphasise on the importance of- relationships and official recognition to such relationships. He states that “the Constitution, through both positive and negative postulations, inter alia capacitates citizens in their quest to develop themselves.” He connects this Constitutional Aim or a common constitutional theme of development of citizens to Martha Nussbaum’s list of ten capabilities which are central requirements to live a quality life. Among those requirements, CJI emphasises- firstly on the capability of humans to emote love and other such feelings in their private space and secondly on the capability to be able to live with and toward other, and having such institutional arrangements or affiliations protected.

To put it simply, the Constitution, through its various provisions in Fundamental Rights and Directive Principles of State Policy, aims at the development of people and a quality life for them. This quality life, CJI states, includes the ability to form meaningful relationships and the ability to have those relationships recognised by the state.

Article 19 and Right to enter a Union

Article 19(1) (a) states as follows: All citizens shall have the right— (a) to freedom of speech and expression. CJI relied on the well-established jurisprudence that freedom of speech enshrined in Article 19(1) (a) also includes other forms of expression such as the manifestation of complex identities of persons through the expression of their sexual identity, choice of partner and the expression of sexual desire to a consenting party.

Article 19(1) (c) states that “all citizens shall have the right to form associations or unions or co-operative societies.” While holding that associations include the traditional coming together of people for a cause or such kind of associations, other forms of association are also protected under Article 19 (1) (c). To realise all forms of expression protected under Article 19(1)(a), CJI relied on a United States’ case Roberts vs. United States Jaycees which stated that freedom of association includes freedom to form intimate relationships. He observed that state recognition of the association is necessary for the free and unrestricted exercise of the freedom to form intimate associations and the state by not endorsing some form of relationships, encourages certain preferences over others. He states as follows:

“For the right to have real meaning, the State must recognise a bouquet of entitlements which flow from an abiding relationship of this kind. A failure to recognise such entitlements would result in systemic discrimination against queer couples. Unlike heterosexual couples who may choose to marry, queer couples are not conferred with the right to marry by statute. To remedy this, during the course of the hearing, the Solicitor General of India made a statement that a Committee chaired by the Cabinet Secretary will be constituted to set out the rights which will be available to queer couples in unions. The Committee shall set out the scope of the benefits which accrue to such couples.”

Another right that the CJI traces the right to a civil union to, is the Right to Settle in any part of India. Article 19(1)(e) guarantees that All Citizens shall have the right to reside and settle in any part of the territory of India. CJI read two definitions into the word ‘settle.’

One:  that an exercise of Article 19(1)(e) can be by building a life in any part of the country and reside there permanently with or without a partner-an exercise that is uniquely significant to queer, inter-caste and inter-faith couples) who migrate from their hometowns to other places in the country including cities. Another definition is that citizens may ‘settle down,’ meaning entering a relationship with another person. He also stated that settling down in any city encompasses entering a relationship with another person since building a life includes choosing their life partner. Therefore, he declared that Right to enter a Union is protected under Article 19 (1) (e).

In all the relevant rights guaranteed under Article 19, the CJI’s opinion not only traces the queer couples’ right to a union but also acknowledges that state recognition to these unions is necessary for the complete enjoyment of these rights by individuals.

Article 21 and Right to Enter a Union

CJI traced the right to enter a civil union to three facets of Article 21. Article 21 states that No Person shall be deprived of his life or personal liberty except according to procedure established by law. First, he observes and acknowledges the legitimacy of an atypical family i.e., a family that does not conform to the traditional notions of natal mother and father. He recognsied the right of atypical families to be different to the conventional ones and ruled that “Difference cannot be discriminated against simply because it exists. Articles 19 and 21 protect the rights of every citizen and not some citizens.”

Second, he ruled that the act of entering intimate relationships and choices made in such relationships are protected under Right to Privacy under Article 21, and that a right to intimacy exists emanating from right to privacy, autonomy, and dignity.

Third, the CJI read right to health, emphasizing mental health on which the Parliament too has enacted a legislation on, into Article 21- supporting the right of people to enter a civil union. He states that rights of Queer Persons to access mental healthcare is recognised by Section 18 of the Mental Healthcare Act, 2017-which stipulates that persons have access to mental healthcare without being discriminated on the basis of sex, gender, or sexual orientation. Reading Article 21 with Section 18 of the Mental Healthcare Act- CJI stated- would deem the natural consequence to be the one where queer people have the right to enter a lasting relationship with their partner and have the right not to be subjected to inhumane and cruel practices and procedures.

Article 25 and Right to Enter a Civil Union

Article 25(1) states as follows:

Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.

CJI expanded the scope of freedom of conscience from just freedom to practice and profess a religion to a freedom and right to judge the moral quality of one’s actions in one’s life. The application of a sense of what is right and wrong and a decision on what they want to do and what they do not-individuals are entitled to decide for themselves in accordance with their conscience- he stated. This included whether they want to choose a partner and what kind of partner would they choose, he held.

By tracing the right to enter an abiding union to all these articles, CJI held that the right extends to queer relationships too. This was however different from a right to marriage which the CJI had denied in his judgement, along with the rest of the bench. CJI’s opinion on marriage, when read in combination with the opinion on right to an abiding civil union means that although there is no right to marriage to individuals since marriage is an institution accorded recognition by the state and therefore not as fundamental, there is a right to an abiding civil union which is fundamental to live a quality life and to exercise rights under Articles 19, 21 and 25.

By directing a committee to be set up to set out the scope of benefits that should accrue to Queer couples, the CJI’s opinion asks the state to act and recognise the relationships between Queer people.

Right to Relationship exists but no obligation on the state to take measures to recognise it- Justice Ravindra Bhat

While Justice Bhat and the CJI agreed on the point of there being no fundamental right to marry, they disagreed on whether the right to a relationship other than marriage-can be traced back to Article 19 and 25, and whether the state is under obligation to create conditions for the exercise of those rights.

Firstly, Justice Bhat characterises the right to union as propounded by the CJI, as Right to Relationship so as to differentiate between the two. Therefore, in this article too, Right to Relationship will be used when referring to Justice Bhat’s opinion and Right to Union will be used when referring to CJI’s opinion.

While Right to Relationship includes the right to choose a partner, cohabit and enjoy physical intimacy with them, to live the way they wish to, and other rights that flow from the right to privacy, autonomy and dignity, does not trace these rights to Articles 19 or 25. He merely places them within the wide ambit of Article 21 and argues that these rights being included in Article 21 is  natural consequence of Supreme Court’s judgements in Navtej Johar vs. Union of India(Decriminalization of Section 377), Justice K.S. Puttaswamy vs. Union of India[(2017) 10 SCC 1)] (Right to Privacy a Fundamental Right), Shafin Jahan vs. Asokan K.M [(2018) 16 SCC 368] (Right to Marry is within Right to Life under Article 21), Shakti Vahini vs. Union of India[(2018) 7 SCC 192] (Khap Panchayats cannot prevent a consenting couple from marrying).

Disagreement with the CJI over the flow of Rights from Articles 19 and 25, on positive obligations of the state

Justice Bhat disagreed on CJI’s point of there being a positive obligation on state to create an institutional scheme to give recognition to queer civil unions. He stated that Article 19(1) (a) does not oblige the state to enact a law or frame a regulation which enables the facilitation of that expression. He takes the example of Limited Liability Partnership (LLP) – a form of association to argue that if there was not a law on LLP, the court could not have validly created such a regime enabling the recognition or regulating such associations under Article 19(1) (c); or a demand for construction of a house by the state could not be made under Article 19(1) (e). Justice Bhat did not rule out court scrutiny or court’s power to direct the government altogether, but he opined that assertion of a right in the face of some threat by state action or despite state protection-becomes subject of state scrutiny. This means that if there is a particular order or law made by the government which discriminates against Queer Couples, then the court can interfere and direct the state to do something different, but this interference cannot flow from the rights under Article 19 or 25. In the absence of any law, the court cannot ask the state to create a new system and therefore, the positive obligation imposed by the CJI on the state was disagreed with.

Justice P.S. Narasimha disagreed with the CJI in his concurring opinion to Justice Bhat’s opinion by stating that there cannot be a right to civil union mirroring the right to marriage. He stated that when the benefits of marriage do not make marriage a fundamental right, the same benefits cannot render the right to an abiding cohabitational union fundamental. The interpretation of CJI under article 25 is also disagreed with, by Justice P.S. Narasimha. He states that if such interpretation is permissible, the textual enumeration of freedoms under Article 19 becomes redundant since these freedoms can be claimed to be actions on the basis of one’s own moral judgement. Regarding directing the state to recognise civil unions, he stated that by doing this, the doctrine of separation of powers is violated.

Conclusion

It is clear that the CJI proposed an institution that mirrors marriage in the form of right to enter an abiding civil union and the obligation of the state to recognise such relationship, while the majority disagreed with him on the obligation of state to recognise such relationship. CJI’s task of propounding the civil union concept after denying the fundamental right to marry, falters in front of the reasoning adopted by Justice P.S. Narasimha who stated-if benefits of marriage are not fundamental, how can an institution that mirrors marriage be fundamental? Justice P.S.Narasimha’s reasoning does not completely negate CJI’s reasoning but presents the contradictions of CJI’s opinion.

In the next part of this series, the rugged jurisprudence the majority tried to bring forth with its opposition to CJI’s concept of Civil Union will be explored.

(The author is a researcher with the organisation)

Related:

Right to Same Sex Marriages is not a right that can be claimed: Union to SC

Same sex marriage is not an elitist concern: Akkai Padmashali

Demand for live streaming of same sex marriage case just an attempt to create unnecessary hype: Centre

I am not fully ‘woke’: Madras HC judge to start psychology sessions to understand same sex relationships

The post What the Supreme Court says on the Right to enter into a Civil Union appeared first on SabrangIndia.

This article is a part of a series that will explain and analyse the judgement with respect to different ways in which the judges reached their conclusions, the jurisprudence they created and sidelined, and the consequences of this judgement. The following were the issues decided by the court:

1)      Whether the Right to Marry is a Fundamental Right or not.

2)      Whether there is a Fundamental right to enter a Civil Union or not.

3)      Whether the SMA is unconstitutional for excluding non-heterosexual persons from its scope or not.

4)      Whether non-heterosexual marriage can be read within the framework of SMA or not.

5)      Whether Transgender Persons have a right to marry under the SMA or not.

6)      Whether the adoption Regulations that restrict unmarried non-heterosexual couples in adopting children are valid or not.

The relevant provisions for each issue of the respective act/regulations will be discussed in the respective part for the sake of ease. For now, this part will examine the issue of whether Right to Marry is a Fundamental Right or not, according to the judgement.

This was an issue on which the five judges were unanimous in their decision — that there is no fundamental right to marry.

In a three- judge bench judgement by the Supreme Court in the case of Shafin Jahan vs. Asokan K.M, it was held that individual has a right to marry a person of one’s own choice as well as the right to choose a religion.[2]  In another 3-Judge bench judgement by the Supreme Court in the case of Shakti Vahini vs. Union of India, the judgement observed that the ability of an individual to make choices is an inextricable part of dignity and when two adults choose to marry out of their own volition, they have a right to do so.[3]

Relying on these two judgements, the petitioners claimed that like all persons have a right to marry, Queer people too have a right to marry (Queer is being used as an umbrella term for all non-cisgendered & non-heterosexual people in this series).

CJI D.Y. Chandrachud arrived at his pronouncement in a way different to that of other judges. He states that Entry 5 of the Concurrent list (List III) of the Seventh Schedule of the Constitution grants powers to the state to regulate Marriage, Divorce, Adoptions, Succession etc and this, is the reason why the State can regulate the institution of Marriage. If there is a Fundamental Right to marry, he states, then the state would be obligated to create the institution even without Entry 5 and such argument cannot be accepted.[4]

To put it in rather simple words, his opinion says that marriage was a mere social institution but with state’s regulation via different acts such as Hindu Marriage Act, SMA etc, marriage has attained more significance. However, its significance is not entrenched in the Constitution. He stated that with issues like privacy and right to education in the cases of Justice KS Puttaswamy vs. Union of India[(2019) 1 SCC 1] and Unnikrishnan vs. State of Andhra Pradesh [1993 SCC (1) 645] respectively, their significance could be traced back to Constitutional Values and consequently Article 21- therefore they were declared as fundamental rights. Marriage is unlike privacy and education, meaning that the Constitution does not recognise a fundamental right to marry. He stated that the recognition for and meaning of the institution of marriage which the petitioners want for themselves is not accorded by the constitution but by a statute.[5]

Justice Ravindra Bhat, writing for himself and on behalf of Justice Hima Kohli, took a different approach to arrive at the pronouncement that there is no right to marry.

He traced back marriage to a period when state was not in existence and therefore, declared that the source of marriage is external to the state, and the source defines the boundaries of marriage. He states as follows:[6]

“This implies that the marriage structure exists, regardless of the state, which the latter can utilise or accommodate, but cannot be abolished as a concept. Under this view terms of marriage are set, to a large extent, independently of the state. Its source is external to the state. That source defines the boundaries of marriage. This implies that state power to regulate marriage does not sit easy with the idea of marriage as a fundamental right.”

He stated that there are two competing claims with respect to the nature of marriage- one says that the state should exercise more control, and another says that it should exercise minimal control. He consequently stated that even if there was indeed a right to marry, it cannot be operationalised unless it is elevated to the status of Article 17 (Prohibition of Untouchability), Article 23 (Prohibition of Traffic in Human beings), Article 24(Prohibition of employment of Children in factories etc). Therefore, the court cannot compel the creation of a social institution, he stated, by recognising a fundamental right to marry. [7]

To put in simple words, the State cannot grant a fundamental right that would have the effect of creating an institution that it had no hand in creating or will have no hand in abolishing.

Finally, Justice P.S. Narasimha had a slightly different or perhaps an additional way to Justice Bhat’s way to arrive at his pronouncement that there is no fundamental right to marry. First, he stated that legislations on marriage have accommodated customary and religious practices, and this synchronously occupied institutional space of marriage is a product of our social and constitutional realities, and therefore, right to choose a spouse and the right of a consenting couple to be recognised within the institution of marriage is restricted. The space granted to customary practices is also conditions by the right to religion and right to culture, sanctified in Articles 25 & 29 of the Constitution, he stated.[8]

Contradictions in the Verdict of Five Judges

The ways judges have arrived at the denial of the fundamental right to marry are not only peculiarly one of a kind, but they also contradict each other.

The CJI’s opinion on one hand says marriage’s significance is attributable to the state’s legislation rather than Constitutional Principles, therefore, there is no right to marry. Justice Bhat’s opinion on the other hand states that marriage’s significance exists outside of the state and therefore, the State cannot be tasked to effectuate a right to marry, by the court.

The question that arises when one looks at both ways is whether it is a requirement for an institution to be disconnected/connected to the State’s efforts, for it to be declared as a fundamental right.

In Virender Gaur vs. State of Haryana [(1995) 2 SCC 577], the Supreme Court stated that protection and preservation of the environment, ecological balance free from pollution as part of Article 21. It stated as follows: Article 21 protects the right to life as a fundamental right. Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Any contraacts or actions would cause environmental pollution. Environmental ecological, air, water, pollution, etc. should be regarded as amounting to violation of Article 21.

In Francis Coralie Mullin vs The Administrator[1981 SCC (1) 608], the Supreme Court held that the right to life includes “the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.” Although the court conditioned these rights on the economic capabilities of the State, the court did not even require the necessity of tracing of constitutional values for recognising these rights.

By the time the court had delivered the judgement in the case of Virender Gaur, there were multiple acts governing the mere social understanding to have sanitary spaces by way of the Air (Prevention and Control of Pollution) Act, 1980, Environment Protection Act, 1986 etc. Despite the extensive state legislation granting importance to concepts such as sanitation and environmental degradation, the court did not restrain itself from tracing the rights to sanitation to Directive Principles of State Policy- Article 48A (Protection and Improvement of Environment and Safeguarding of Forests and Wild Life) and Article 47(Duty of State to raise the level of nutrition and standard of living and to improve public health). One could argue that there is no directive principle or any other Constitutional provision that the right to marriage could be traced back to. However, Article 38- casts a duty on the state to secure a social order for the promotion of welfare of people. Article 38(1) states — “The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.”

If the state is duty bound to protect a social order in which social justice informs all institutions of national life, the right to marry a person, for a non-heterosexual person forms part of the social justice principle since the same right is accorded to cisgendered-heterosexual people. Given the unanimous agreement by the whole bench about the discrimination faced by the queer people across the country even today, this interpretation would have given effect to the constitutional values to deliver social justice to people. CJI does mention Article 38 as he goes on to discuss the right to enter a civil union, but his opinion does not provide any cogent reasoning as to why the same tracing cannot be done between fundamental right to marry and Directive Principles as under Article 38. Justice Kaul, in his concurring opinion with the CJI mentions Article 38 when he bats for an anti-discrimination law but nothing more on that is stated. Justice Kaul states that the anti-discrimination legislation would “also be in furtherance of the positive duty of the State to secure social order and to promote justice and social welfare under Article 38 of the Constitution.”

Coming to Justice Bhat’s opinion, he has held that since marriage is an institution which is independent of the state with respect to its boundaries and source, the Court cannot give a fundamental right to marry which would necessitate the State to take up the obligation to create an institution of marriage for Queer people. Additionally, Justice Bhat also spends efforts in differentiating between the Marriage system in the United States where only a licenced marriage by the United States’ government is a recognised marriage and marriage system in India where there is no need to do so. However, there is no reasoning provided in Justice Bhat’s opinion regarding how the minimum criterion in different marriage acts for a marriage in India to be valid cannot be equated to the licence regime in the United States. There is only a broad proposition, in Justice Bhat’s opinion, that marriage exists independently of the state in India unlike in the United States but no further examination of such a proposition, which if done, would reveal that a similar system also exists in India and gets triggered when the couple wants the State to be involved in matters such as dispute resolution etc. This is highlighted by the CJI himself in this judgement itself in a section under which he responds to Justice Bhat’s observations on various disagreements. Such further examination would also reveal that the competing claims that he has noted with respect to wanting or not wanting state influence in marriage also would fall since in that paradigm, both the petitioners and the ones claiming that marriage should be between biological man and woman will approach the state.

Justice P.S. Narasimha’s opinion, while agreeing with Justice Bhat’s opinion-thus having the same contradictions- also had additional reasons as to why there is no fundamental right to marry. He says that the existence of customary accommodations aided by constitutional articles such as Articles 25 & 29 of the Constitution mandates the right to marry and the facets of it are restricted. This is a reasoned observation since there are competing rights over an institutional space of marriage coupled with state interest, there are restrictions on the right to marry. These restrictions are already materialised in the forms of prohibited degrees of relationships, age of parties to marriage etc. He however goes on to equate claiming for a right to marry to a claim to create a legal and socially enforceable status.

However, for example, the grant of Right to Privacy as a fundamental right in Justice K.S. Puttaswamy’s case did not materialise into a claim for a legal regime for privacy. Although it could be differentiated from the current Supriyo Chakraborty case by saying that the petitioners in the latter case did ask for a substantive reading in of provisions of SMA- it is important to note that the Judicial Creativity that was used in devising ways to arrive at the pronouncement to deny the right to marry, would surely have been successful in arriving at conclusions which would have granted right to marry without causing judicial overreach, to non-heterosexual couples, who face much discrimination, as agreed by the Court.

Conclusion

While the right to marry was only one of the many reliefs prayed for by petitioners, the reasoning employed to deny it has created a jurisprudence that is not only tricky and difficult to navigate but also goes contrary to the established jurisprudence over positive obligations of the state, especially due to the fact that the positive obligation to remedy a social institution in which the state has had less interference in is under scrutiny, due to the majority’s opinion.

In the next part of this series, the right to enter a Civil Union and the disagreements between CJI and Justice Bhat will be discussed.

(The author is an intern with the organisation)

[1] 2023 INSC 920

[2] (2018) 16 SCC 368

[3] (2018) 7 SCC 192

[4] Para 182, Page 138, Supriyo Chakraborty vs. Union of India, https://main.sci.gov.in/supremecourt/2022/36593/36593_2022_1_1501_47792_Judgement_17-Oct-2023.pdf

[5] Para 184, Page 140, Supriyo Chakraborty vs. Union of India.

[6] Para 45, Page 290, Supriyo Chakraborty vs. Union of India.

[7] Para 47, Page 291, Supriyo Chakraborty vs. Union of India.

[8] Para 12, Page 362

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The South Asian lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQIA+) population has looked to the Himalayan nation as a beacon of hope for their rights. In 2007, Nepal became the first nation in South Asia to formally recognize the third gender. Since then, the rights of gender and sexual minorities have gradually been realised and improved.

In a historic step, Nepal has become the first nation in South Asia to legalise same-sex unions, joining the tiny but increasing group of countries in the Asia-Pacific that have acknowledged this basic human right. The Supreme Court of Nepal issued a historic interim judgement on Friday ordering the Nepali government to formally recognise same-sex marriage, marking a significant step towards inclusivity and equality. This order by Justice Til Prasad Shrestha emphasises the necessity of significant changes to the current National Civil (Code) Act of 2017 (2074) provisions. According to the Family Law, marriage is defined as a relationship between “a man and a woman accepting each other as the husband and wife”. Adhip Pokharel, a Nepali national, and Tobias Volz, a German national, petitioned for this historic change. When Volz applied for a non-tourist visa to live in Nepal as Adhip Pokharel’s spouse in 2022, the couple—who had wed in Germany back in 2018—met with substantial challenges. The application was turned down by the authorities, who cited Nepal’s lack of legislative protections for same-sex unions as their justification. The pair was determined to stop this discriminatory practise, so they brought their case to the Supreme Court, which ultimately resulted in the issuing of an order granting the German citizen a non-tourist visa.

The legal journey to Same-sex marriages in Nepal

The lengthy and complex process that Nepal’s courts went through to recognise and legalise same-sex marriage is examined in this essay, along with the possible implications for an upcoming Indian Supreme Court decision.

On June 28 2023, the Supreme Court of Nepal made a historic decision that opened the door for marriage equality in the nation, making Nepal the first South Asian to legalize same-sex marriages and the fourth in the Asia-Pacific to do so. Justice Til Prasad Shrestha ordered the government to immediately begin registering same-sex marriages while working on legislation to modify the current law, despite the civil code currently defining marriage as being between a man and a woman

The Supreme Court of Nepal’s interim judgement calls for the creation of a “transitional mechanism” for the registering of weddings for the nation’s gender and sexual minorities. In addition, the directive instructs the PMCMN and the office of the Prime Minister to establish a “separate register of marriages” specifically for heterosexual and homosexual couples.

The interim order is based on Article 18(1) (right to equality) of Nepal’s 2015 Constitution and Section 69(1) (freedom of marriage) of The National Civil (Code) Act of 2017 which promote the recognition of marriage rights for people based on their gender identification and sexual orientation. It requests that the regulations pertaining to marriage and the registration of

Although there have been occasions when implementation has lagged, Nepal’s Supreme Court has won praise for its decisions in favour of LGBTQIA+ rights.

LGBTQIA+ individuals in Nepal have historically experienced significant discrimination and stigma. From their families, neighbourhoods, and places of employment, they frequently experienced hatred, rejection, and isolation. LGBTQIA+ people experienced verbal, physical, and emotional abuse, which had a serious negative impact on their mental and emotional health.

An important LGBTQIA+ rights group called the Blue Diamond Society (BDS) was established in Nepal in 2001. It was essential in spreading knowledge about LGBTQIA+ issues, offering support services, promoting legislative changes, and questioning social conventions. To provide a safe environment for LGBTQIA+ people, BDS ran community centres, outreach programmes, and pride marches.

Protests and demonstrations were organised by LGBTQIA+ activists in Nepal to demand their rights and oppose the country’s discriminatory laws and social mores. Although these activists encountered a lot of opposition and backlash, their work was crucial in spreading knowledge and rallying support for LGBTQIA+ rights.

The LGBTQIA+ population in Nepal was disproportionately impacted by the HIV/AIDS epidemic. Many LGBTQIA+ individuals were hesitant to seek healthcare treatments and support because of social stigma and discrimination. In order to address the confluence of LGBTQIA+ rights and public health, organisations like the Blue Diamond Society campaigned to give HIV/AIDS preventive information, testing, and support to LGBTQIA+ people.

Sunil Babu Pant Case- Catalyst for Change

A crucial court case, for LGBTQIA+ rights in Nepal was Sunil Babu Pant v. Government of Nepal[1]. The case was brought in 2007 by LGBTQIA+ activist and Blue Diamond Society founder Sunil Babu Pant, who questioned the validity of Nepal’s laws that make same-sex partnerships illegal.

The legal code of Nepal at the time, Section 377, used to criminalise “unnatural sexual intercourse” and target coerced same-sex partnerships. According to Sunil Babu Pant, this clause went against the Interim Constitution of Nepal’s guarantees of equality, non-discrimination, and privacy.

The Sunil Babu Pant v. Government of Nepal case was a significant advance for LGBTQIA+ rights. The LGBTQIA+ community was represented by the petitioners, who argued against Nepal’s discrimination against them and failure to recognise their preferred genders. The issuance of birth certificates, citizenship certificates, passports, voter identity cards that recognised their preferred genders, and the decriminalisation of consenting same-sex sexual activity were among the legal recognition and protections they sought.

The court ruled that under the different articles of the Constitution and the international agreements that Nepal has ratified, LGBTQIA+ people are entitled to equal protection and rights.  According to the court, a person’s gender identity and sexual orientation are protected by their right to privacy and cannot be accessed without their consent. LGBTQIA+ people’s privacy was violated by treating their sexual behaviour as unnatural.  A committee was established by the court with the mission of researching and defending the rights of minority groups, including the LGBTQIA+ community. The committee was tasked with advising the state on the adoption of suitable legal legislation to safeguard LGBTQIA+ rights.  The court ordered the state to implement appropriate legal provisions to protect the rights in accordance with the committee’s recommendations. This verdict suggested the need for extensive legal changes to eliminate discrimination and give LGBTQIA+ people legal protection.

The Sunil Babu Pant case established crucial precedents for LGBTQIA+ rights in Nepal by reaffirming their legal equality, right to privacy, and dignity. Additionally, it emphasised the state’s responsibility to end prejudice and led to the formation of a committee to direct legislative improvements. These conclusions were important advancements in Nepal’s legal protection and acknowledgment of LGBTQIA+ rights. This verdict suggested the need for extensive legal changes to eliminate discrimination and give LGBTQIA+ people legal protection.

Early in 2015, a report from a government-appointed commission was released, effectively endorsing the legalisation of same-sex unions. However, neither had the same impact as the Supreme Court’s ruling establishing a third gender category. The third option was added to voter records by the Election Commission in 2010, and immigration papers quickly followed suit. Nepal was the first nation in the world to include a third gender in its federal census in 2011. The government also began issuing passports in 2015 that recognised three genders. In the same year, Nepal’s constitution was amended to specifically protect LGBT persons, making it the tenth nation in the world to do so.

Nepal’s progressive Constitution

On September 16, 2015, Nepal’s Constituent Assembly approved a ground-breaking new constitution following a protracted process of review and discussion. Having lost its monarchy in 2008, this was Nepal’s first constitution as a federal republic. Notably, the new constitution of Nepal is the first in Asia to specifically recognise the human rights of LGBTQ individuals.

Numerous sections of the constitution guarantee safeguards and rights for LGBT people. Article 12 gives people the freedom to indicate either their preferred gender identity—male, female, or other—on their citizenship documentation. The state and the judiciary are expressly forbidden from discriminating against gender and sexual minorities when enforcing the law under Article 18. Additionally, it enables the government to create specific legal provisions that develop, protect, and defend the rights of sexual and gender minorities as well as other oppressed and marginalised groups.

In order to encourage inclusiveness and representation, Article 42 also acknowledges gender and sexual minorities as a group with the right to participate in governmental processes and public services.

The Supreme Court of Nepal’s ground-breaking decision from December 2007 helped pave the way for this momentous development in Nepal’s constitution. The court’s ruling prepared the way for the inclusion of gender and sexual minorities’ rights in the nation’s constitution by laying the foundation for their recognition and protection.

Nepal’s constitution demonstrates a progressive position by specifically recognising the human rights of LGBT people and marks a significant turning point in the country’s advancement of equality and non-discrimination.

The court in the Sunil Babu Pant judgement also observed that the right to marriage is an “inherent right” of an adult based on free consent and will. However, it appears that the government’s legislative ineptitude in carrying out these court orders continues. In fact, there are some instances where the government has shown a reluctance to recognise the equal rights of the gender and sexual minorities, such as when it maintains a strictly gender-binary definition of marriage under Sections 67 (marriage deemed to be concluded) and 68 (marriage to be inviolable social bound).

The Supreme Court of Nepal has recently made decisions based on the principle of Stare decisis, citing other decisions it has made regarding LGBTQIA+ rights. The court strengthened the legal recognition of same-sex marriages and established a progressive trajectory in defending the rights of sexual minorities by being consistent and expanding on prior precedents.

Impact on Neighbouring countries and Global precedents

The Penal Code (Amendment) Bill, 2023, which aims to repeal legislation criminalising intimate conduct between consenting adults, was recently dismissed by the Supreme Court of Sri Lanka. The court found that the proposed legislation would guarantee everyone equal protection under the law regardless of sexual orientation, strengthen fundamental rights, and enable people to live with dignity. Recognising the right to privacy and liberty, the court emphasised that it is not the function of the government to regulate adult-to-adult private consenting sexual interactions.

This advancement in Sri Lanka is consistent with the historic decision rendered on March 22 by the Supreme Court of Nepal. The Supreme Court of Nepal recognised the equality of marriage and ordered the Ministry of Law and Justice to draught an equal marriage law or change current legislation to reflect this. Since the court’s ruling in Sunil Babu Pant v. Government of Nepal in 2007, which recognised the third gender legally and upheld the right to marriage as an inherent right based on free consent and will, non-heterosexual weddings have been accepted in Nepal.

The region’s neighbouring nations are significantly impacted by Nepal’s progressive position on LGBTQIA+ rights. The Supreme Court of India, a neighbouring country, decriminalised homosexuality in 2018 and is currently taking requests for non-heterosexual couples to be treated equally in marriage. The ruling in Nepal establishes a precedent and motivates comparable debates and legal issues in India.

The legalisation of gay marriage in Nepal also demonstrates the nation’s leadership in furthering the rights of South Asian gender and sexual minorities. The steadfast dedication of Nepal’s Supreme Court to equality and the affirmation of fundamental rights serves as a model for other nations in the region.

Conclusion

The legal environment is changing, and it is more crucial than ever to recognise LGBTQIA+ people’s rights. The courts’ emphasis on respect, confidentiality, and equal legal protection is consistent with universally accepted human rights tenets. A rising understanding that consenting private conduct between adults should not be criminalised can be seen in Nepal’s ruling and Sri Lanka’s dismissal of challenges to the repeal of discriminatory laws.

In conclusion, tremendous progress has been made in recognising and defending the rights of gender and sexual minorities in South Asia as seen by Nepal’s ground-breaking decision on marriage equality and Sri Lanka’s rejection of objections to the repeal of discriminatory laws. These developments may influence legal debates and reforms in neighbouring nations, promoting a more welcoming and egalitarian society for all.

LGBTQIA+ activists and advocacy groups in India find inspiration and a role model in Nepal’s legalisation of same-sex unions. The courts would be encouraged to fight for the same rights and official acceptance of same-sex unions in India. Legal advances in one nation can have an impact on judicial rulings and legal debates in neighbouring nations. Nepal’s legalisation of same-sex unions may add to the increasing number of worldwide legal precedents and justifications for marital equality. These precedents could be mentioned in Indian courts while a petition for same-sex unions is under consideration. When same-sex marriage laws are successfully implemented in Nepal, politicians in India may consider making similar changes. The Indian government may come under pressure as a result to deal with LGBTQIA+ rights problems more aggressively and take steps to legalise same-sex weddings or increase the legal status of same-sex partnerships.

(This article has been researched by Hasi Jain, an intern with the organisation.)

same-sex unions[1] Sunil Babu Pant v. Nepal Government, Writ No. 914 of the year 2064 BS (2007 AD)

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