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.

The importance of this issue cannot be understated, as it touches upon fundamental rights, privileges, and obligations that are bestowed and protected by the law. The Supreme Court has meticulously heard arguments from petitioners and respondents for ten days, including the union government, the National Organization for Children’s Rights, NCPCR, and a group of Islamic scholars known as the Jamiat-Ulama-i-Hind.

Petitioners’ Demands

Eighteen couples have petitioned for the legal recognition of same-sex marriages. The petitioners involved in these cases have fervently campaigned for fundamental reforms to the legal landscape, seeking to establish a more inclusive and just society. Their pleas can be summarised as follows:

1. Recognition of Same-Sex Marriages: The petitioners contend that refusing same-sex unions legal recognition is discriminatory and violates the equality, privacy, and dignity rights of LGBTQIA+ people. They seek a judicial declaration that same-sex marriages should be treated on par with heterosexual marriages, granting equal legal rights and benefits.
2. Non-discrimination based on Gender and Sexual Identity: Laws and regulations, according to the petitioners, cannot discriminate against anyone based on their sexual orientation or gender identity. Any categorisation that privileges one group over another based on sexual orientation or gender identity is unlawful since it denies LGBTQIA+ people equal protection under the law.
3. Reinterpreting Current Laws: The petitioners ask the courts to construe current marriage laws in a way that these are inclusive and take the rights of the LGBTQIA+ community into account. Reinterpreting the law would ensure that same-sex unions are not prohibited purely because of their sexual orientation or gender identity.
4. Repealing or Amending Discriminatory Provisions: A number of petitioners want certain parts of the marriage laws that are discriminatory repealed or changed. The petitioners contend that gender-neutral wording should be used in place of these clauses to cover all couples, regardless of gender identification.
5. International Commitments to Human Rights and Constitutional Morality: The petitioners emphasize the importance of constitutional morality in creating effective laws. They also stress India’s responsibilities to international human rights and call for a match between national legislation and those standards.
6. Protecting “Chosen Families”: Some petitioners call for the legal recognition and protection of “chosen families” or “atypical families” beyond the conventional bounds of marriage, blood relationships, or adoption.
7. Comprehensive Safety and Legal Protections: A number of petitioners want complete legal safeguards for the LGBTQIA+ community, including measures to address the violence, discrimination, and harassment faced by them.
8. Positive State Responsibility to Affirm Rights: The petitioners stress that it is the state’s responsibility to acknowledge and defend the rights of LGBTQIA+ people.

Union government’s position

The Union government, headed by the right-wing Bharatiya Janata Party (BJP)  has vehemently opposed any constitutional declaration that would legalise same-sex marriages, arguing that it does not align with the Indian concept of marriage. The key arguments presented by the government in its counter-affidavit can be summarized as follows:

1. The Uniqueness of the Indian Family Unit: The government argues that a relationship between a biological man as a husband, a biological woman as a wife, and their offspring produced out of the union is the essence of marriage in India.
2. Heterosexuality and Statutory Recognition: According to the government, current marriage-related personal legislation and statutory enactments exclusively recognize heterosexual partnerships.
3. Issues with Current Laws: The government points out potential challenges in matters relating to adoption, divorce, maintenance, and inheritance if same-sex marriages were to be legally recognized.
4. Interest of the State in Heterosexual Marriages: According to the government, only recognizing heterosexual unions is consistent with past practice and essential to the survival and continuity of the State.
5. Fundamental Rights and Reasonable Classification: According to the government, Part III of the Constitution does not infringe any fundamental rights by refusing to recognize same-sex unions.
6. Privacy and the Right to Marry: The government acknowledges that marriage includes private persons and has an impact on their lives, but insists that it is more complex than a simple privacy concern.

Arguments made in Court

During the ten-day proceedings, the petitioners and respondents engaged in a robust exchange of arguments. The key arguments made during the hearings can be summarized as follows:

1. Fundamental Right to Marry: The petitioners argued that the LGBTQIA+ community has a fundamental right to marry, guaranteed under the Constitution.
2. Gender-Neutral Interpretation of SMA: The Special Marriage Act, 1954, with its gender-neutral language, was crucial in the hearings. Petitioners argued that this phrase does not impose any gender-based restrictions and should be interpreted as inclusive of same-sex couples.
3. Innate Characteristics and Equality: Advocates emphasized that laws must not discriminate based on innate characteristics, such as sexual orientation and gender identity.
4. Procreation and Marriage: The respondents argued that marriage’s primary purpose is procreation, and legalizing same-sex marriages would go against this traditional understanding.
5. Notice Period under SMA and Privacy Concerns: During the hearings, the notice period clause under the Special Marriage Act, 1954, was questioned by the petitioners for potentially violating personal privacy and autonomy.
6. Recognition of Same-Sex Marriages Abroad: The issue of recognizing same-sex marriages performed abroad under the Foreign Marriage Act, 1969, was raised during the hearings.
7. Parenting and Child Welfare: Concerns about child welfare were expressed, with respondents arguing that same-sex parents might not provide adequate care.
8. Parliament’s Role vs. Judiciary’s Role: The respondents contended that the issue of same-sex marriages should be left to the Parliament rather than the judiciary.

Key Issues for the court to consider

The court will take into account several key issues when rendering its decision, including whether members of the LGBTQIA+ community have a fundamental right to marry, and if so, whether the court can make a declaration to this effect.

Conclusion

In conclusion, the pending judgment on the legal recognition of same-sex marriages is a groundbreaking decision that holds significant implications for the rights and equality of the LGBTQIA+ community in India. The court’s ruling will not only shape the legal landscape surrounding marriage but will also reflect the nation’s commitment to inclusivity, dignity, and non-discrimination.

The fervent arguments presented by the petitioners underscore the fundamental right to marry and the need for gender-neutral interpretations of existing laws. The government’s opposition raises concerns about preserving the uniqueness of the traditional Indian family unit. As we await the Supreme Court’s decision, it is crucial to recognise the historic importance of this case and its potential to create a more inclusive and just society

Related:

Pew Research Centre: 53% of Adults in India Support Legalisation of Same-Sex Marriages

Equal marriage rights: A deep dive into the resistance, showcasing those resisting non-discrimination

Queer and Proud: The last legal challenge to a law that criminalises homosexuality

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

Same-sex marriage an assertion of love, marriage & inclusivity

Decoding Discrimination Against Same-Sex Couples

The post In the face of conservative opposition, India’s Supreme Court will decide on petitions on Same-Sex Marriage appeared first on SabrangIndia.

The fact that Indians while preaching diversity and equality, often forget that people who have different sexual orientations, that is the people of the LGBTQ+ community also deserve the same rights as the heterosexual people of this country.

When section 377 was decriminalised[2], it was a watershed movement for the country, a hope for a better future where the privileges that the heterosexual community enjoys are equal and same as the rights that the LGBTQ+ community deserves.

However, there has been no further action taken to strengthen the rights of the community since 2018, even after the unabated discrimination faced by the community. Five years down the line and India still stands at the same position with respect to LGBTQ+ rights, even after recognizing them as a community that needs equality.

The United Nations’ Universal Declaration of Human Rights states,

“Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family[3].”

Then why is there an issue when it comes to same sex couples?

Adoption rights in India

In India, there are two main legislations that govern adoption, the Hindu Adoption and Maintenance Act, 1956[4] (herein after referred to as HAMA) and The Juvenile Justice (Care and Protection of Children) Act, 2000[5] (herein after referred to as JJ Act)

With accordance to HAMA,

Every man who is a Hindu (by faith, including Buddhist, Jain, or Sikh) who is of sound mind, not underage, and is qualified to adopt a son or a daughter. However, if such a man is still married at the time of the adoption, he can only do so with his wife’s permission (unless the court has pronounced her incapable of giving her consent).

Any female who is a Hindu (including Buddhist, Jain, or Sikh by religion) has the right to adopt a son or daughter if she is not married, or if she is married but her husband is deceased, their marriage has been dissolved, or her husband has been found to be legally incompetent by a court. This also limits the adoption rights of women, somewhat.

HAMA, while allowing single parents to adopt, but does not leave space for same sex adoption.

If a couple is adopting under HAMA act, they need to be-

1. Of different genders
2. Hindu’s
3. Of sound mind

Under the JJ Act,

• A couple or a single parent may adopt an orphan, an abandoned kid, or a child who has been handed over.
• The potential adoptive parents must be mentally stable, physically fit, and fully prepared to adopt the child and to raise the child well.
• For married couples, both spouses’ consent is necessary.
• Adopting a girl kid is not permitted for unmarried men.
• No couple may receive a child unless they have been married for at least two years in a healthy partnership.
• The age gap between the adoptive child and the parents shouldn’t be any smaller than 25 years.

Here, in order for a couple to adopt it is necessary for them to have a “healthy marriage” for a period of two years. However, since same-sex marriages are not legally recognized in India, therefore even under the JJ act it is not permissible for same sex couples to adopt a child.

The Guardians and Wards Act[6] too is dominated d by the idea of a heterosexual couple.

Since all the legislations that govern adoption and surrogacy see marriage as a prerequisite for adoption in the case of couples, it is impossible for a homosexual couple to adopt. Moreover, the legislations are not gender neutral. Building a family by marriage and having kids through adoption is a basic right that should be available to all humans and should not be categorized as a heterosexual privilege.

Despite recognising the LGBTQ+ community formally, India is still holding on to these discriminatory laws, and restricting the people from the community to have a family. This is not only a contravention of Article 14 and 15, but also of Article 19 of the Indian Constitution.

Jurists and LBGTQ+ Rights-

Lon Fuller, a legal philosopher and jurist, argued that law must conform to or with morality. He introduced a concept of “inner morality of law” which means that for a legal system to be legitimate and effective, it must conform to some essential moral principles. The laws must reflect and promote basic moral principles and values accepted by society, such as fairness, justice and human dignity.[7]

Laws are shaped by the society we are living in, but in the end laws need to serve their purpose, which is fairness and justice. Laws must conform with the basic moral standards, in order to be considered legitimate. Living in a society, where the laws are not just or fair for a particular group of people, makes the system itself, basically ineffective and illegitimate.

While living in a democracy, it is especially important to keep in mind that law is dynamic, law must conform with the basic moral standards, law is a measure of equality in society and that law is a tool that can be used to uplift all communities in the society that have faced discrimination in the past.

Ronald Dworkin[8], another legal philosopher and jurist, places emphasis on the ethical foundations of rights.  According to Dworkin, rights have a deeper moral foundation than simple legal or social structures. Dworkin contends that because they are moral beings, people have certain rights. The values of justice, fairness, and respect for human dignity serve as the foundation for these rights.

They represent the inherent worth and liberty of people while also providing them with defence against unwarranted intrusion or injury. According to Dworkin, people have inherent rights because of their moral standing rather than being awarded or bestowed by the government or society. They can neither be removed nor overruled by simple law nor the desires of the majority because they exist regardless of legal acknowledgment.

Dworkin’s idea of “rights as trumps” highlights how crucial individual rights are when it comes to determining legal decisions. Rights, in Dworkin’s view, have a distinctive position and act as trumps that take precedence over other factors like utilitarian or majority interests.

Dworkin’s viewpoint argues that the rights of anyone, including same-sex couples, should be recognised and protected when applying this idea to same-sex adoption.

Dworkin would probably contend that same-sex couples should be allowed to adopt in the context of same-sex adoption. He would argue that it is against their fundamental rights to equality and liberty to prevent same-sex couples from adopting merely based on their sexual orientation. Dworkin’s paradigm would give individual rights and the best interests of the child top priority when determining whether same-sex adoption is legal and permissible.

Countries that have legalised same-sex adoption-

Fifty-five countries, have legalized same sex adoption, 128 countries are in the process of doing so, 44 countries consider same sex adoption illegal[9].

In the celebrated judgement of the US supreme court, Obergefell v. Hodges[10], a case which has been repeated citied by the Indian Courts in various judgments, like Navtej Singh Johar v. the Union Of India[11], Arunkumar and Another Versus Inspector General of Registration[12], Justice K S Puttaswamy (Retd.) and Another Versus Union of India and Others[13] and Shayara Bano v. Union of India [14]

The case has not only been an important one, to reach the most groundbreaking decisions of India but has also been used as a precedent. This was the case that legalized same-sex marriages and same-sex adoption in the US.

However, so far, while using it a precedents on many aspects of universal rights law, where Indian courts have spoken about dignity, privacy, and right to marry whoever you want, Courts have not legalised same-sex adoption or marriage up yet.

Indian constitution and same-sex adoption

Everyone has the right to equal treatment under the law, as stated in Article 14. It allows for distinctions to be made between various groups of individuals, but it also demands that these distinctions be founded on observable differences and have a logical relationship to the objective being pursued. There is no discernible difference between people who indulge in “carnal intercourse outside the order of nature” and those who engage in “natural” intercourse, according to the Supreme Court in the case of Navtej Singh Johar v. UOI.

According to the ruling in Navtej Singh Johar v. Union of India, the LGBTQ+ group has access to all fundamental and constitutional rights. When precedents explicitly state that the LGBTQ+ community is entitled to the same fundamental rights as everyone else, the law cannot prohibit certain persons from adopting because they share the same gender. This concludes to say that, If the constitution upholds equality, then everyone must have the option of getting married, regardless of whether or not other people of the same sex desire to do so.

The right to marry whoever you want and form a family is an inherent right of a human being, and this right is enshrined in Article 21 of the constitution of India. The court noted that society was through a substantial period of change in Shafin Jahan v. Asokan K.M. and ors. [15] Marriage-related intimacy is protected by an unbreakable core of seclusion, and even religious matters would have little effect on it.

It has been also determined that the freedom to marry anyone one chooses and the freedom to start a family are essentially protected under Article 21 of the Indian Constitution. In a Bombay High court Judgement, Payal Sharinee v. Vinayak Pathak[16] the court held that adopting a child is an integral component of Right to Life under article 21 of the Constitution of India. The right to life not only to safeguard the rights of children who need the care and protection but also of the parents who desire children and want to form a family.

It would be discrimination against the LGBTQ+ community to deny them this right since it has been established that there is no intelligible differentia, which would be a violation of Article 15 of the Indian Constitution.

Imperative for legal change regarding same-sex adoption in India

Laws governing same-sex adoption are increasingly being called for to be changed as a result of changing social standards and a growing knowledge of the diversity of families. The idea of equality is at the core of the push for new laws. All citizens must be treated equally in a democratic society, regardless of their sexual orientation. The Indian Constitution’s anti-discrimination tenets are violated when same-sex couples are denied the opportunity to adopt merely because of their sexual orientation. Accepting same-sex couples’ ability to adopt will respect equality principles by guaranteeing that everyone has an equal chance to start a family and create a loving home for children.

The wellbeing and best interests of the child come first in any adoption situation. Children raised by same-sex couples do equally as well as those reared by heterosexual couples, according to a number of studies. For instance, the American Psychological Association has emphasised that parental behaviour and family relationships—rather than the parents’ sexual preferences—have a greater impact on children’s wellbeing. By limiting the number of prospective loving and caring homes and disregarding the wellbeing of numerous children who may benefit from adoption, the right to adopt is denied to same-sex couples.

When it comes to the numbers of children in India who require homes, there is a serious problem. Many youngsters spend a considerable amount of their childhood in institutional care as a result of the lengthy and complicated adoption procedure. By permitting same-sex couples to adopt, the pool of prospective adoptive parents would grow, boosting the likelihood that children waiting for adoption will find suitable and devoted homes. This larger pool of potential parents can lessen the strain on the already overworked adoption system and improve results for kids who need them.

The social environment is dynamic and ever-changing. The acceptance of same-sex adoption fits in with the global movement to acknowledge and respect various family forms. The legalisation of same-sex adoption in numerous places, including several Western ones, demonstrates how important inclusion and equality are. India should endeavour to lead social progress and show its commitment to human rights by accepting such legal reforms since it is a fast expanding country.

In India, same-sex couples are marginalised and stigmatised as a result of the current legal prohibitions on same-sex adoption. Denying people the ability to adopt keeps a feeling of inequity and exclusion alive, which is bad for their mental health. Accepting same-sex adoption will lessen these detrimental psychological effects by reaffirming the value and dignity of every person, regardless of sexual orientation.

In conclusion, there is an urgent need for legal modification in India with relation to same-sex adoption. The ideals of equality, child welfare, and societal advancement can be honoured by amending adoption rules to accommodate same-sex couples. Such legal changes would increase adoption opportunities, safeguard children’s safety, and advance a more open and equitable society. It is essential that India accepts these changes and cultivates a culture that values and honours the variety of family configurations and upholds the interests of its young people.

(The writer is a legal intern with cjp.org.in)

[1] https://www.oed.com/

[2] AIR 2018 SC 4321

[3] Universal Declaration of Human Rights (adopted on 10th December 1948) Article 16(1)

[4] https://www.indiacode.nic.in/bitstream/123456789/1638/1/AA1956____78.pdf

[5] https://www.indiacode.nic.in/repealed-act/repealed_act_documents/A2000-56.pdf

[6] https://www.indiacode.nic.in/handle/123456789/2318?locale=en

[7] Fuller, Lon L. “Positivism and Fidelity to Law: A Reply to Professor Hart.” Harvard Law Review 71, no. 4 (1958): 630–72. https://doi.org/10.2307/1338226.

[8] Dworkin, R. (1977) Taking Rights Seriously. Harvard University Press, Cambridge, MA

[9] https://www.equaldex.com/issue/adoption

[10] Hodges – 135 S. Ct. 2584 (2015)

[11] Navtej Singh Johar and Others Versus Union of India, Thr. Secretary Ministry of Law and Justice [2018] 4 MLJ (CRL) 306

[12] Arunkumar and Another Versus Inspector General of Registration, No. 100, Santhome High Road, Chennai – 600 028 and Others [2019] 4 MLJ 503

[13] Justice K S Puttaswamy (Retd.) and Another Versus Union of India and Others [2017] 6 MLJ 267

[14] Shayara Bano Versus Union of India and Others [2017] 6 MLJ 378

[15] Shafin Jahan v. Asokan K.M. and ors. (2018) 16 SCC 368, AIR 2018 SC 1933

[16] Payal Sharinee v. Vinayak Pathak 2010 (1)BomCR 434

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Marriage enjoys social recognition but also a legal sanction. The unique structure of the Indian Legal system is the lack of coherence as to how the Indian legal system understands the institution of marriage. Keeping in mind the precept of secularism, various personal laws were codified and structured to give recognition to existing social practices. This resulted in a heterogeneous understanding and engagement of the legal system with the institution of marriage.

While both the Hindu personal law and the Christian personal law view marriage as a sacred union between legally permissible adults, the Muslim personal law understands marriage from the position of contract. How do the two understandings differ? Marriage as a contract becomes an agreement between two willing parties. Globally, contractual marriages recognise the varied and differing positions of the two parties individually. This recognition translates in first the possibility of collective and personal assets and formalises protections for both the parties of the marriage contract at the time of dissolution/divorce.

On the other hand, marriage as a union engages with the willing parties as a single unit. This formulation of the institution benefits the policy framework by instituting the continuation of lineage and property and aiding as the focal point for the state to engage with child care, nutrition etc. Personal laws further complicate this understanding within India. Here the union then takes upon itself the burden of religious sanction through the rituals and practices which constitute a marriage. Then this marital union takes the shape of a sacrament.

Cabinet Minister of Law and Justice, KirenRijiju, spoke to the importance of marriage as a union for the policy system itself. While speaking about the pending decision and cases in the Supreme Court he states, “The government is not interfering with the personal life or activities of an individual. Personal freedom or personal activities of citizens are never questioned or disturbed or regulated by the government. However, when the issue concerns the institution of marriage, it is a policy matter that needs serious discussion”, quoted by ANI.

Here the government seems to be creating a qualificatory distinction between marriage and what constitutes ‘personal’ for an individual. The government seems to be interested in conversing with the institution of marriage from the singular lens of policy impact and fails to recognise that the act of marriage and the choice of partner continue to be personal and integral acts for any human being. This position of marriage is a fundamental personal liberty is recognised as a constitutional guarantee within the ambit of Article 21 (LakshmibaiChandaragi B. V State of Karnataka, 2021).

The legislative wing of the state has time and again intervened in this personal liberty to influence both the practice and the institution of marriage itself. These transformations began with the Age of Consent controversy in 1891. The bill introduced by the British paved the way for a legal history where the Indian State used the method of legal sanctions to correct social practices associated with the institution of marriage.

These sanctions have been motivated by a unifying thread of gender equality. Be it the myriad of laws composing the Hindu Code Bill in the 1950s, The Protection of Child Marriage Act of 2006 and the recent Bill on Prohibition of Child Marriage tabled in the Indian Parliament. The Indian Legislature has had a history of using legal methods and tools to correct ‘gender’ justice. These policy formulations have attempted to tackle concerns of domestic violence, age of marriage, rights to property, and rights of dissolution. Though motivated and aimed towards gender equality they always have not had the intended results.

The same case cannot be made for the Indian Judiciary. While the engagement of the judiciary with the institution of marriage is more continuous and sustained, the judgments have oscillated in their positions.

The judiciary has fought patriarchal legal provisions within the law itself by overturning various lower court judgements on the restitution of conjugal rights (Sushil Kumar Dang V Prem Kumar, 1976). At the same time, the judiciary has not given adoptive rights (Sitabai V Ramachandra, 2020) and given weightage to the sanctity of marriage through personal laws furthering the political stand that the ‘Union must and should not interfere in the home’(Harvinder Kaur V Harmander Singh, 1983).

Today, the idea of what constitutes gender justice has expanded; the conversation has moved from two poles to the idea of a spectrum. With this expanding understanding of gender, which has now been recognised by the Indian State through judicial intervention, all previous legislative and judicial interventions within the institution of marriage become precedence towards sanctioning same-sex marriage itself. The very unilateral conversation that the government is raising in opposition to the petitions, provides fertile ground for recognising same-sex marriage.

The Special Marriage Act of 1954 was another legislative intervention aimed at correcting many inequalities within existing religious and personal laws. It was a strategy employed by the Indian political system to correct glaring difficulties in accessing inter-caste and inter-religious marriages within the Indian social structure. It takes over the sanctioning authority from religion to law by the provision of the Institution of Marriage through state geared registration. The act of registration of marriage gives it the position of a civil contract within the law.

The 18 petitions in the court seek recognition of same-sex marriage within the Special Marriage Act of 1954. Given that the aim of the law in itself was to ensure accessibility and liberty in the choice of marriage beyond religious sanctions. The petitioners are well within their constitutional and legal purview to seek a missed recognition within the law. As discussed, this constitutional liberty cannot be abridged.

Contrary to the opposition to the petition, the civil contract under SMA, 1954 does not necessarily take away the possibility to continue to engage with the institution of marriage for policy measures. It does make the movement within and away from the institution of marriage itself relatively easier. Simply because the civil contract of marriage recognises that agency, at the end of the day, lies within the hands of the two parties themselves. This agency then becomes the second tenant of the Special Marriage Act. The petitions seem to be asking why this agency is restricted to archaic notions of gender and sexuality.

Furthermore, the Special Marriage Act 1954 employs a gender-neutral language of person/people. This employed gender-neutral language coupled with the very aim of the Act has created fruitful conditions for the demand to expand the understanding of marriage beyond ‘the bride’ and ‘the groom’ within Indian political and legal systems. Though the petitioners have to continue to point to the difference between the right to love and the liberty to marry. Given that the legal and political framework in India has gone on to recognise that the social practice of marriage is no longer sine-qua-non to sexual intercourse. The recent bill introduced in the Parliament on Prevention of Child Marriage Bill, 2021 recognises the age of consent to be 18. Judicial proceedings have gone on to give couples living in long-term cohabitation akin to a marriage similar rights as spouses. These protections and securities are not guaranteed but have gone on to recognise the changing nature of social relationships. Though these recognitions continue to be heteronormative simply because the sanction of marriage continues to be heteronormative.

The Indian judiciary has transformed the legal, political and policy framework to expand their understanding of gender from the male-female polarity. The commitment to this task has been long due. Through a slew of recent judgements, the idea of the citizen now recognises the third gender, privacy has been given sacrosanct importance and as late as 2018, the SC decriminalised homosexual sex. Yet the conversation has remained to give access to complete freedom within the privacy of homes.

What is unique to the current case is that the demand for ‘same-sex marriage’ not only accepts the right to love but also recognises and formalises that the idea of love, marriage and sex is no longer heteronormative within India. Keeping the emotional and sociocultural elements of the choice of marriage and partner, expanding access to marriage as an institution would not merely accept various gender and sexualities, it would recognise their presence.

(Sakshi Sharda is a Research Associate at Social Policy Research Foundation (SPRF) and an Editorial Consultant with Taylor and Francis, India. She has completed her MPhil from the Centre for Political Studies; SPRF is a think tank of young research professionalsthat seeks to intervene in matters of public policy)

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Madras High Court’s Justice Anand Venkatesh said that he will fix an appointment with a psychologist to understand same sex relationships better.

“Ultimately in this case, the words must come from my heart and not from my head, and the same will not be possible if I am not fully “woke” on this aspect. For this purpose, I want to subject myself for psycho-education with Ms. Vidhya Dinakaran and I would request the psychologist to fix a convenient appointment for the same,” said Justice Venkatesh.

He added that such a session will help him evolve, saying, “I honestly feel that such a session with a professional will help me understand same-sex relationships better and will pave way for my evolution. If I write an order after undergoing psycho-education, I trust that the words will fall from my heart.”

The court was hearing a protection plea filed by a lesbian couple and back in March, had referred them and the families to a counsellor, specialising in LGBTQIA+ individuals. It was alleged that their parents were against their relationship. When this matter had come up initially, Justice Venkatesh had said that he was trying to break his own “preconceived notions about the issue and he was in the process of evolving.”

The court had requested the Mediation Centre to allot two cabins to enable the parents to have a one-to one interaction with their daughters and they spent nearly an hour with them in the Centre. The court, while referring their matter to a counsellor who specialises in working with LGBTQIA+ individuals said, “This move becomes very vital since this Court is moving into unchartered waters, and a report from a specialist will provide support to this Court to move forward in this case.”

In pursuance of this direction, the court on April 28 recorded that all parties attended the counselling session, and a report of that has been submitted to it. He perused the report and said, “Insofar as the petitioners are concerned, the psychologist has opined that both the petitioners perfectly understand the relationship they have entered into and there is absolutely no confusion in their minds about the same. It is also observed that they have a lot of love and affection for their parents and their only fear is that they may be coerced into separation.”

The High Court noted that both women wanted to continue their education and work simultaneously, to take care of themselves and they also wanted to be in touch with their family members. “The petitioners are also willing to wait for their parents, whom they fervently hope will understand the relationship at some future point of time”, recorded the order.

In so far as the parents are concerned, Justice Venkatesh observed that “they are more concerned about the stigma attached to the relationship in the society and the consequences it may ensue on their family. They also apprehend that they will be looked down upon by the society and their own community. The parents are also very much concerned about the safety and security of their respective daughters.”

The report prepared by the counsellor also states that the parents would rather prefer their daughters to live a life of celibacy, which according to them will be more dignified than having a partner of the same sex. “They also have serious confusions regarding the lineage, adoption and other normal consequences that follow a heterosexual relationship and as to how the same would apply in a case of same sex relationship”, said the court.

After making such observations, Justice Anand Venkatesh requested the counsellor “to fix some date during the month of May 2021 and conduct one more counselling for the parents of the petitioners and submit a report before this Court.”

The Court proceeded to post the matter next on June 7. The Court also took on record the assurance of the State that the FIRs filed on the parents’ complaint would be closed immediately. It said, “It is brought to the notice of this Court that despite the directions issued by this Court, the police are yet to close the First Information Report. The learned Government Advocate assured that the First Information Report will be closed immediately and reported before this Court.”

The order may be read here: 

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In a rather significant judgment that has paved a way for gender-neutral sexual harassment jurisprudence, the Calcutta High Court, has held that same gender sexual harassment complaints are maintainable under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, popularly known as the POSH Act.

In a judgement delivered in November 2020, Justice Sabyasachi Bhattacharyya observed that sexual harassment construed under the Act pertains to the dignity of a person which related to his/her gender and sexuality which does not mean that any person of the same gender cannot hurt the modesty or dignity as envisaged by the Act. The petition was filed against the Internal Complaints Committee of Vivekananda College, by the person against whom the Committee had instituted action under the Act despite being the same gender as the complainant. The complainant had alleged that the petitioner had vilified and defamed the complainant in public and thus the petitioner contended that this does not fall under the purview of definition of sexual harassment under the Act. The petitioner argued that action being taken against sexual harassment only pertains to a man being involved in the offence, which ingredient has to be factored in while appreciating the connotation of “sexual harassment” under the Act.

The petitioner also relied upon Vishaka & Ors. –vs- State of Rajasthan & Ors. 1997(7) JT 384, the judgement which was the point of inception for the POSH Act as the Vishaka guidelines laid out by the Supreme Court were the basis of the POSH Act. It was submitted that as per the said judgment, the meaning and contents of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality, including prevention of sexual harassment or abuse. Thus, the question of gender equality acquires primacy in deciding whether a complaint falls within the periphery of the Act and since the gender of the complainant and the respondent is the same, the question of the Act being invoked does not arise, argued the petitioner.

The court, after hearing arguments, held that there is nothing in the Act to preclude a same-gender complaint. “Although it might seem a bit odd at the first blush that people of the same gender complain of sexual harassment against each other, it is not improbable, particularly in the context of the dynamic mode which the Indian society is adopting currently, even debating the issue as to whether same gender marriages may be legalized,” observed the court.

The court held that the definition of sexual harassment under the Act “cannot be a static concept but has to be interpreted against the back-drop of the social perspective” and it “has to pertain to the dignity of a person, which relates to her/his gender and sexuality; which does not mean that any person of the same gender cannot hurt the modesty or dignity as envisaged by the 2013 Act”.

In what can be considered a landmark opinion voiced in the backdrop of the progression of the society, the court held that “a person of any gender may feel threatened and sexually harassed when her/his modesty or dignity as a member of the said gender is offended by any of the acts, as contemplated in Section 2(n), irrespective of the sexuality and gender of the perpetrator of the act”.

The court thus held that the complaint of sexual harassment at workplace against the same sex  was maintainable and dismissed the petition. The court directed that the concerned authorities may proceed with the complaint as the court had not looked into the merits of such complaint and hence the process should not be influenced by any observations made by the court.

The complete order may be read here.

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