Where do SC’s rulings leave LGBTQ+ community in India? (Explainer)

New Delhi, Oct 21 (IANS) The Supreme Court on Tuesday delivered four verdicts in the same-sex marriage case. The four judgments were written by Chief Justice of India D.Y. Chandrachud, Justice S.K. Kaul, Justice Ravindra Bhat, and Justice P.S. Narasimha. IANS decodes the judgments:

Right to Marry

The main question put up in front of the 5 judge bench was whether the Right to Marry was a fundamental right. In November 2022, the case was heard by the court for 10 days in which same-sex couples had submitted before the court that their inability to marry under Indian family law violated their fundamental rights to equality, life and liberty, dignity, free speech and expression, etc.

All five judges unanimously agreed that the right to marry is not a fundamental right. And those seeking same-sex marriage cannot claim it as a fundamental right until the law permits them to marry.

All the judges also agreed that transgender persons in heterosexual relationships had the right to marry under existing laws including personal laws which regulate their marriage.

Right to form a civil union:

Out of the five judges on the Constitution Bench, the majority verdicts delivered by three judges, Justice Bhat, Justice Hima Kohli, and Justice Narasimha held that civil unions between same-sex couples are not recognised under the existing law and they cannot claim the right to adopt children either.

In two separate minority judgments, CJI Chandrachud and Justice Kaul ruled that same-sex couples are entitled to recognise their relationships as civil unions and can claim consequential benefits.

Need to revisit adoption laws

Notably, both the judgments by CJI Chandrachud and Justice Bhat recognised the insufficiency of the existing laws. While the CJI and Justice Kaul struck down the Central Adoption Resource Authority (CARA) regulations, Justice Bhat upheld the CARA regulations but noted that there was a need to reconsider the existing adoption law.

“The CARA Circular disproportionately impacts the queer community and is violative of Article 15,” the CJI said.

“Regulation 5(3) of the CARA Regulations cannot be held void on the grounds urged. At the same time, this court is of the considered opinion that CARA and the Central Government should appropriately consider the realities of de facto families, where single individuals are permitted to adopt and thereafter start living in a non-matrimonial relationship. In an unforeseen eventuality, the adopted child in question, could face exclusion from the benefits otherwise available to adopted children of married couples. This aspect needs further consideration, for which the court is not the appropriate forum.” Justice Bhat said in his judgement.

Directions to Government:

In terms of the reportable judgment, the CJI directed the Centre, State, and UT governments to:

i. Ensure that the queer community is not discriminated against because of their gender identity or sexual

orientation;

ii. Ensure that there is no discrimination in access to goods and services to the queer community, which are available to the public;

iii. Take steps to sensitise the public about queer identity, including that it is natural and not a mental disorder;

iv. Establish hotline numbers that the queer community can contact when they face harassment and violence in any form;

v. Establish and publicise the availability of ‘safe houses’ or Garima Grehs in all districts to provide shelter to members of the queer community who are facing violence or discrimination;

vi. Ensure that “treatments” offered by doctors or other persons, which aim to change gender identity or sexual orientation are ceased with immediate effect;

vii. Ensure that inter-sex children are not forced to undergo operations with regard only to their sex, especially at an age at which they are unable to fully comprehend and consent to such operations;

viii. Recognize the self-identified gender of all persons including transgender persons, hijras, and others with sociocultural identities in India, as male, female, or third gender. No person shall be forced to undergo hormonal therapy or sterilisation or any other medical procedure either as a condition or prerequisite to grant legal recognition to their gender identity or otherwise;

Secondly, the CJI directed the appropriate government under the Mental Healthcare Act must formulate modules covering the mental health of queer persons in their programmes under Section 29(1). Programmes to reduce suicides and attempted suicides (envisaged by Section 29(2)) must include provisions that tackle queer identity.

Thirdly, the CJI directed that the police machinery should ensure that there shall be no harassment of queer couples by summoning them to the police station or visiting their places of residence solely to interrogate them about their gender identity or sexual orientation. The CJI further directed that the police shall not force queer persons to return to their natal families if they do not wish to return to them.

“When a police complaint is filed by queer persons alleging that their family is restraining their freedom of movement, they shall on verifying the genuineness of the complaint ensure that their freedom is not curtailed; When a police complaint is filed apprehending violence from the family for the reason that the complainant is queer or is in a queer relationship, they shall on verifying the genuineness of the complaint ensure due protection; Before registering an FIR against a queer couple or one of the parties in a queer relationship (where the FIR is sought to be registered in relation to their relationship), they shall conduct a preliminary investigation in terms of Lalita Kumari v. Government of U.P1, to ensure that the complaint discloses a cognizable offence.”

The CJI further directed that the police must first determine if the person is an adult. “If the person is an adult and is in a consensual relationship with another person of the same or different gender or has left their natal home of their own volition, the police shall close the complaint after recording a statement to that effect.”

Justice Kaul, while concurring with the CJI’s judgment concluded:

“Is this the end where we have arrived? The answer must be an emphatic ‘no’. Legal recognition of non-heterosexual unions represents a step forward towards marriage equality. At the same time, marriage is not an end in itself. Our Constitution contemplates a holistic understanding of equality, which applies to all spheres of life. The practice of equality necessitates acceptance and protection of individual choices. The capacity of non-heterosexual couples for love, commitment and responsibility is no less worthy of regard than heterosexual couples. Let us preserve this autonomy, so long as it does not infringe on the rights of others.”

Justice Bhat pronounced the judgment on behalf of himself and Justice Kohli. Justice Narasimha concurred with him. This majority judgment disagrees with the CJI and Justice Kaul’s judgments but also issues directions that are relevant to the queer community.

Justice Bhat said that equality and non-discrimination are basic foundational rights. The indirect discriminatory impacts in relation to earned or compensatory benefits, or social welfare entitlements for which marital status is a relevant eligibility factor, for queer couples who in their exercise of choice form relationships, have to be suitably redressed and removed by the State.

Emphasising the urgency of the matter, Justice Bhat added that these measures need to be taken with expedition because inaction will result in injustice and unfairness with regard to the enjoyment of such benefits, available to all citizens who are entitled and covered by such laws, regulations or schemes (for instance, those relating to employment benefits: provident fund, gratuity, family pension, employee state insurance; medical insurance; material entitlements unconnected with matrimonial matters, but resulting in adverse impact upon queer couples).

Saying that the court cannot within the judicial framework engage in this complex task, Justice Bhat directed the Centre to study the impact of these policies, and entitlements.

“…Union shall set up a high-powered committee chaired by the Union Cabinet Secretary, to undertake a comprehensive examination of all relevant factors, especially including those outlined above. In the conduct of such exercise, the concerned representatives of all stakeholders, and views of all States and Union Territories.”

Justice Bhat further directed “…State shall ensure – consistent with the previous judgment of this Court in K.S. Puttaswamy (supra), Navtej Johar (supra), Shakti Vahini (supra) and Shafin Jahan (supra)- that the choice exercised by queer and LGBTQ couples to cohabit is not interfered with and they do no face any threat of violence or coercion.”

— IANS