End Discrimination Against Queer Couples, Address Exclusion Of Same-Sex Partners From Benefits: Supreme Court To State

Even though the Supreme Court refrained from granting legal recognition for same-sex marriages, it did make a strong call to the State to take steps to end the discrimination faced by queer couples and to ensure protection for their right to cohabitation.

The Court clearly observed that the discrimination faced by the queer community due to the exclusion of same-sex partners from welfare measures due to the heteronormative definitions in laws must be addressed by the State.

The five-judge Constitution Bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and Justice PS Narasimha refused to bring queer marriages within the fold of the Special Marriage Act 1954.  To read the provisions of the Act in such a manner would amount to a legislative exercise, the Court held.

Although the bench was not unanimous on whether there is a right to civil union in the absence of a statutory enactment - with CJI DY Chandrachud and Justice Kaul answering the issue in the affirmative and the other three judges holding otherwise- the judges were on the same page in recognising the right of queer persons to choose their partner and cohabit.

CJI DY Chandrachud, in his judgment, issued a slew of directions to the police and the governments to ensure that the queer community is not discriminated against because of their gender identity or sexual orientation.

Justice Bhat, even while disagreeing with the CJI on certain aspects, also acknowledged the discrimination faced by queer couples. The right to cohabit and live in a relationship in the privacy of one’s home is fundamental, and enjoyed by all, Justice Bhat stated.

State recognizing only homosexual relationships adversely impacts queer couples

Justice Bhat further stated in the judgment that the State recognising only homosexual relationships as marriage impacts queer couples adversely. Elaborating this point,he said :

"The intention of the state, in framing the regulations or laws, is to confer on benefits to families, or individuals, who are married. This has the result of adversely impacting to exclude queer couples. By recognizing heterosexual couples’ unions and cohabitation as marriages in various laws and regulations such as: in employment (nominations in pension, provident fund, gratuity, life and personal accident insurance policies); for credit (particularly joint loans to both spouses, based on their total earning capacity); for purposes of receiving compensation in the event of fatal accidents, to name some such instances, and not providing for non-heterosexual couples such recognition, results in their exclusion," (Para 113)

The restrictive way in which ‘dependent’ or ‘nominee(s)’ are defined (‘spouse’, or members of the family in a heteronormative manner) in schemes such as Provident Fund, Family Pension, Employees State Insurance etc., exclude their enjoyment to the intended beneficiary. 

"This deprivation has to be addressed," said Justice Bhat adding, "This injustice and inequity results in discrimination, unless remedial action is taken by the state and central governments."

State must mitigate discriminatory impact on queer community

Justice Bhat however said that it is beyond the remit of the judiciary to decide in what manner the rights of the queer couples should be determined. Observing that the issue was "polycentric" and involved several policy considerations, he said that the matter must be left to the legislature and the executive.

However, he categorically stated, "The State has to take suitable remedial action to mitigate the discriminatory impact experienced by the members of the queer community, in whatever form it deems fit after undertaking due and necessary consultation from all parties, especially all state governments and union territories, since their regulations and schemes too would have to be similarly examined and addressed."(Para 148)

He added :

"The resultant adverse impact suffered by the petitioners in relation to earned benefits, solely because of the State’s choice to not recognise their (social) union or relationship, is one which results in their discrimination. This discriminatory impact – cannot be ignored, by the State; the State has a legitimate interest necessitating action. The form of action – whether it will be by enacting a new umbrella legislation, amendments to existing statutes, rules, and regulations that as of now, disentitle a same-sex partner from benefits accruing to a ‘spouse’ (or ‘family’ as defined in the heteronormative sense), etc.– are policy decisions left to the realm of the legislature and executive. However, the recognition that their non-inclusion in a legal framework which entitles them, and is a prerequisite eligibility criteria for myriad earned and accrued benefits, privileges, and opportunities has harsh and unjust discriminatory consequences, amounting to discrimination violating their fundamental right under Article 15 –is this court’s obligation, falling within its remit."(Para 148)

"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. 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)" (Para 149)

At the same time, it was observed that the court cannot within the judicial framework engage in this complex task; the State has to study the impact of these policies, and entitlements. 

Court takes on record the Centre's statement to constitute a committee

In this backdrop, the Court took on record the statement made by Solicitor General of India on May 5 that the Central Government will constitute a High-Powered Committee to consider if certain rights can be conferred on queer couples, short of legal recognition as marriage.

Justice Bhat observed :

"Consistent with the statement made before this Court during the course of proceedings on 03.05.2023, the 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 shall be taken into account."

CJI DY Chandrachud, also accepting the Centre's suggestion, stated that the proposed committee should consider the following :

i. Enabling partners in a queer relationship (i) to be treated as a part of the same family for the purposes of a ration card; and (ii) to have the facility of a joint bank account with the option to name the partner as a nominee, in case of death;

ii. In terms of the decision in Common Cause v. Union of India, as modified by Common Cause v. Union of India, medical practitioners have a duty to consult family or next of kin or next friend, in the event patients who are terminally ill have not executed an Advance Directive. Parties in a union may be considered ‘family’ for this purpose;

iii. Jail visitation rights and the right to access the body of the deceased partner and arrange the last rites; and

iv. Legal consequences such as succession rights, maintenance, financial benefits such as under the Income Tax Act 1961, rights flowing from employment such as gratuity and family pension and insurance.

Justice Narasimha also acknowledged the concerns of the LGBTQ+ partners with respect to denial of access to certain benefits and privileges that are otherwise available only to married couples.

"The impact of some of these definitions is iniquitous and in some cases discriminatory. The policy considerations and legislative frameworks underlying these definitional contexts are too diverse to be captured and evaluated within a singular judicial proceeding. I am of the firm belief that a review of the impact of legislative framework on the flow of such benefits requires a deliberative and consultative exercise, which exercise the legislature and executive are constitutionally suited, and tasked, to undertake." he said concurring with Justice Bhat.

Protect queer couples from violence

Justice Bhat further directed that the State must ensure 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.

"All necessary steps and measures in this regard shall be taken. The respondents shall take suitable steps to ensure that queer couples and transgender persons are not subjected to any involuntary medical or surgical treatment," the judgment stated.

"This court is alive to the feelings of being left out, experienced by the queer community; however, addressing their concerns would require a comprehensive study of its implications involving a multidisciplinary approach and polycentric resolution, for which the court is not an appropriate forum to provide suitable remedies," Justice Bhat stated in conclusion.

Other reports about the judgment can be read here.