Right To Civil Union, Adoption, Transgender Persons' Right To Marry: Where Supreme Court Bench Agreed & Disagreed In Marriage Equality Case

"There is a degree of agreement and a degree of disagreement on how far we have to go," remarked CJI DY Chandrachud as he commenced the pronouncement of the judgement denying the grant of legal recognition for queer marriages in India in open court yesterday. With four separate judgements authored by CJI DY Chandrachud, Justice SK Kaul, Justice Ravindra Bhat, and Justice PS Narasimha, a lot seems to be clarified on these "agreements and disagreements" of the bench on crucial questions of law. This article aims to shed light on the nuances of the legal discourse among the five judges and the diverging viewpoints that have shaped this decision. 

The judgement was pronounced in a batch consisting of twenty petitions filed by same-sex couples, transgender individuals, and LGBTQIA+ activists. During the course of the hearings, the bench had clarified that it will confine the challenge only to the Special Marriage Act and will not touch personal laws. Thus, the challenge pertaining to the Hindu Marriage Act was not taken up.

1. No Fundamental Right To Marry

The Supreme Court unanimously held that there was not fundamental, unequivocal right to marry in India. The CJI, in his judgement, referring to the judgements cited by the petitioners in their arguments to assert the right to marry, stated that none of the majority judgements (in Justice K.S. Puttaswamy v Union Of India and Navtej Singh Johar & Ors. v. Union of India) held that the Constitution guaranteed the right to marry. However, he added that while marriage may not be a fundamental right in itself, it may have attained significance because of the material benefits flowing from the institution of marriage. In this context, the CJI stated that while the Constitution does not expressly recognize a fundamental right to marry, many of the constitutional values, including the right to life and personal liberty may be attained by the material benefits which marriage entails. Justice Kaul did not specifically comment on the right to marry, but stated that he broadly agreed with the CJI's judgement.

Justice Bhat, speaking for himself and Justice Kohli, held that there was no unqualified right to marriage except that recognised by statute. He asserted that marriage was a social institution, which preceded the State. Thus, it was not a status conferred by the State and the source of marriage was external to the state. He stated that this external source defined 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 added. Justice Bhat further stated that civil marriage or recognition of any such relationship could not exist in the absence of statute. Justice Narasimha too, agreed with Justice Bhat and stated that the right to marriage was a statutory right and it flowed from a legally enforceable customary practice. He added that marriage as an institution was conditioned by culture, religion, customs and usages. Justice Narasimha further added that the benefits of marriage, however fundamental to a fulfilling life, do not make marriage itself a fundamental right.

2. On Striking Down The Special Marriage Act & Allied Laws

Another point on which the entire bench agreed was to not strike or read the Special Marriage Act (SMA) and its allied laws down. As per the judgement written by CJI DY Chandrachud, Section 21A of the SMA linked the Act to personal and non-personal laws of succession, making the issue extremely complex in nature. On a similar note, Justice Kaul, in his judgement, also stated that the entitlements devolving from marriage were spread out across a "proverbial ‘spider’s web’ of legislations and regulations" and thus, tinkering with the scope of marriage under the SMA could have "a cascading effect" across various laws. The CJI also stated that the SMA was enacted to enable persons of different religions and castes to marry. In this context, if the SMA was held void for excluding queer couples from its ambit, it would take India back to the pre-independence era, where persons of different religions and castes could not get married. Finally, both the CJI and Justice Kaul held that reading words into the provisions of the SMA and other allied laws would mean entering into the realm of the legislature, which the court was not equipped to do due to its "institutional limitations". 

The judgement by Justice Bhat and Justice Kohli concurred with this view, while also holding that the SMA was not unconstitutional for violating Articles 14 and 15 as the sole intention of the SMA was to enable marriage, as it was understood at the time the 1954 Act was passed (i.e., for heterosexual couples), of persons of different faiths. In this context, it was asserted that as per the decisions of the court, as long as an objective was clearly discernible, it could not be attacked merely because it did not make a better classification. Further, the judgement added that the original rationale for SMA, that is, to facilitate inter-faith marriages could also not be condemned on the ground of irrelevance, due to passage of time as it was still very much relevant. This view was also agreed with by Justice Narasimha. Read more on this here. 

3. On Rights Of Transgender Persons To Marry

All five judges unanimously held that transgender persons in heterosexual relationships had the right to marry under existing laws including personal laws which regulate their marriage. In his judgement, CJI DY Chandrachud emphasized the importance of a harmonious interpretation of existing marriage laws and the Transgender Persons Act. He stated that marriage laws in India primarily permit marriages arising from heterosexual relationships, which are described as involving a "man" and a "woman," a "husband" and a "wife," or a "bride and a bridegroom." Restricting such interpretations would contradict the Transgender Persons Act, which explicitly prohibits discrimination against transgender individuals. He also underscored that a person's transgender identity is determined by their gender identity, not their sexual orientation. He also added that intersex persons who identified as either male or female also had the right to marry under existing law including personal laws.

This was concurred with by all the other four judges. 

4. On A 'Civil Union'

The recognition of a 'civil union' for queer couples was an issue where several disagreements arose within the bench. While CJI DY Chandrachud and Justice SK Kaul called for a recognition of queer civil unions to ensure that queer couples could get material benefits flowing from a marriage, a different view was taken by the other three judges on the bench. 

The CJI, in his judgement, stated that freedom of all persons including queer couples to enter into a union was protected by Part III of the Constitution. Thus, the failure of the State to recognise this "bouquet of entitlements" which flow from a union such as marriage for queer couples would be discriminatory. In thisthe  context, he stated that the State had an obligation to recognize such unions and grant them benefits under law. Justice Kaul, on a similar note, asserted that the right to form unions was a feature of Articles 19 and 21 of the Constitution and the principle of equality under Articles 14 and 15 demanded that this right be available to all, regardless of sexual orientation and gender. The two judges accordingly took on board the statement of the Solicitor General as per which Union was willing to constitute a Committee to set out the scope of benefits available to such unions. 

A different view was adopted by Justice Bhat in his judgement which was concurred with by Justice Kohli. Diverging from the Chief Justice's stance, Justice Bhat stated that while he agreed with the fundamental principle that all queer individuals possess the inalienable right to form relationships and choose their life partners, he disagreed with the Court directing the State to provide for a new legal framework to formalize such relationships. He expressed his disagreement with the notion of legislating a "civil right to a union" through a new law. In his perspective, establishing such a social institution would necessitate the creation of an entirely new legal structure, replete with an array of associated rights and obligations. He emphasized that this would entail the establishment of a separate regime governing the registration of civil unions, defining the conditions for a valid union, specifying eligibility criteria, addressing issues such as age restrictions, divorce procedures, alimony, and other rights intimately linked to the institution of marriage. He argued that the state was not constitutionally obligated to recognize and provide the same. 

Justice Narasimha concurred with Justice Bhat, underscoring that if the court were to mandate the state to recognize a civil union, it would encroach upon the principle of the separation of powers, a foundational tenet of the Indian legal system that delineates distinct roles for the judiciary, executive, and legislative branches of government. 

5. On Adoption Rights Of Queer Couples

Another divergence within the bench arose on the question of whether queer couples had a right to adopt children. In a 3:2 decision, the Supreme Court denied queer couples the right to adopt children. CJI DY Chandrachud and Justice SK Kaul were in the minority, whereas Justice Bhat, Justice Kohli, and Justice Narasimha were in the majority.

In his judgement, the Chief Justice stated that delegated legislation must remain consistent with the parent act, adhering to its boundaries and not exceeding the authority granted under it. Accordingly, the Central Adoption Resource Authority (CARA), should exercise its power within the intended purpose defined by the Juvenile Justice (JJ) Act. He then underscored the primary objectives of the JJ Act, which are to safeguard the best interests of the child and ensure their proper development. In this context, the Chief Justice expressed concern against Regulation 5(3) of the Adoption Regulations, which prohibits unmarried partners from being prospective adoptive parents jointly, meaning that unmarried couples can only adopt in their individual capacity. The CJI argued that the JJ Act does not preclude unmarried couples, including queer couples, from adopting jointly. Therefore, CARA's prescription of an additional condition, as per Regulation 5(3), was considered contrary to the spirit and letter of the JJ Act and Section 57 in particular. He also criticized the assumption made by CARA that only married heterosexual couples can provide a stable household for a child. He noted that there is no single form of a stable household, and the law should not discriminate against unmarried couples, including those from the queer community, based on their sexual orientation. This perspective aligns with Article 15 of the Indian Constitution, which prohibits discrimination based on identity. The Chief Justice argued that the lack of legal and social recognition of same-sex unions contributes to the difficulties faced by children from queer families. To rectify the situation, the Chief Justice held that Regulation 5(3) of the Adoption Regulations should be read down to exclude the word "marital." The reference to a 'couple' in Regulation 5 should encompass both married and unmarried couples, including queer couples. Additionally, the principle in Regulation 5(2)(a) mandating the consent of spouses in a marriage applies equally to unmarried couples seeking to jointly adopt a child. This view was concurred with by Justice Kaul.

Justice Bhat penned the majority opinion on this aspect and cited the lack of a framework as a reason for not allowing queer couples to adopt. While emphasizing that a married couple is not a "morally superior choice" when it came to adoptions, Justice Bhat underlined that the adoption framework considered the protections and entitlements that flow from the institution of marriage. In this context, he stated that the guiding principle of the JJ Act was the "best interest of the child", rather than enabling adoption for all. As per his interpretation, Section 57(2) exclusively pertained to joint adoption by married couples. He explained that this law was designed to prioritize the "best interest of the child" and protect them in cases where a marriage had broken down. As per the JJ Act, adoption becomes a fundamental prerequisite for accessing legal safeguards related to divorce, custody, guardianship, maintenance, and succession. This framework ensures that if one parent abandons the relationship, the other can still maintain themselves and provide for the child, a remedy that couples without legal recognition of marriage are deprived of.

Thus, Justice Bhat asserted that the absence of legal recognition for queer couples forces them to adopt individually, resulting in a lack of legal protections for both parents and the child. He argued that the state had an urgent need to grant the full range of rights to queer parents and children. In his view, it is crucial for the state to ensure that the maximum welfare and benefits reach the largest number of children in need of safe and secure homes, promoting their fullest development.

This was concurred with Justice Kohli and Justice Narasimha.

6. On Formation & Scope Of Committee 

The CJI and Justice Kaul, holding that queer couples had a right to a union recognised by the State, recorded the assurance of the Solicitor General that the Union Government will constitute a Committee chaired by the Cabinet Secretary for the purpose of defining and elucidating the scope of the entitlements of queer couples who are in unions. The CJI, in his judgement, added that the Committee shall include experts with domain knowledge and experience in dealing with the social, psychological, and emotional needs of persons belonging to the queer community as well as members of the queer community. Further, he stated that the Committee shall, before finalizing its decisions, conduct wide stakeholder consultation amongst persons belonging to the queer community, including persons belonging to marginalized groups and with the governments of the States and Union Territories.

While Justice Bhat did not recognise the right of civil unions, in his judgement, he also directed that the Union shall set up a high-powered committee chaired by the Union Cabinet Secretary, to undertake a comprehensive examination of "all relevant factors". While Justice Narasimha did not make a reference to a committee in his judgement, he stated that he broadly agreed with Justice Bhat's judgement.