Minorty judgment of SC recognises civil unions, adoption for same-sex couple

New Delhi [India], October 17 : Chief Justice of India DY Chandrachud and Justice Sanjay Kishan Kaul on Tuesday while giving their minority view, recognised the civil unions akin to marriage or conferring status upon the parties to the relationship between same-sex couples and held that they claim the right to jointly adopt children also like heterosexual couples.
The two judges disagreed with the majority decision of three judges to not recognise the right of queer couples to have civil unions.
A five-judge bench verdict of the top court came on a batch of petitions seeking the right to marriage for members of the LGBTQIA+ community under the Special Marriage Act, of 1954.
The minority verdict, however, agreed with the three judges and said it could not strike down the provisions of the Special Marriage Act (SMA) or read words differently to include non-heterosexual couples within its fold and left it to the Parliament to decide the issue.
"There is no universal conception of the institution of marriage, nor is it static. Under Articles 245 and 246 of the Constitution read with Entry 5 of List III to the Seventh Schedule, it lies within the domain of Parliament and the state legislatures to enact laws recognizing and regulating queer marriage," the minority opinion said.
Queerness is a natural phenomenon known to India since ancient times, it is not urban or elite, CJI said.
As the two judges allowed joint adoption of the child, it said CARA has proceeded under the assumption that only married couples would be able to provide a stable household for the child. Such an assumption is not backed by data.
"Although married couples may provide a stable environment, it is not true that all couples who are married will automatically be able to provide a stable home. Similarly, unmarried relationships cannot be characterised as fleeting relationships which are unstable by their very nature. Marriage is not necessarily the bedrock on which families and households are built," said the CJI.
The minority verdict further added, "The law cannot make an assumption about good and bad parenting based on the sexuality of individuals. Such an assumption perpetuates a stereotype
based on sexuality (that only heterosexuals are good parents and all other parents
are bad parents) which is prohibited by Article 15 of the Constitution. This assumption is not different from the assumption that individuals of a certain class or caste or religion are 'better' parents. In view of the above observations, the Adoption Regulation is violative of Article 15 for discriminating against the queer community."
CJI further added that the failure of the State to recognise the bouquet of entitlements that flow from a union would result in a disparate impact on queer couples who cannot marry under
the current legal regime. The state has an obligation to recognise such unions and grant them benefits under law, he said.
CJI while writing a separate verdict further said that transgender persons in heterosexual relationships have the right to marry under existing law including personal laws that regulate
marriage.
"Intersex persons who identify as either male or female have the right to marry under existing law including personal laws which regulate marriage. The state must enable the LGBTQ community to exercise its rights under the Constitution. Queer persons have the right to freedom from coercion from their natal families, agencies of the state including the police, and other persons," CJI stated.
Ageering with the CJI, Justice Kaul said that as rightly pointed out by the Solicitor General, tinkering with the scope of marriage under the Special Marriage Act (SMA) can have a cascading effect across these disparate laws.
The presence of this web of statutes shows that discrimination under the SMA is but one example of a "larger, deeper form of social discrimination" against non-heterosexual people that is pervasive and structural in nature. Ordinarily, such an intensive form of discrimination "should require keener and more intensive judicial scrutiny", Justice Kaul added.
"Non-heterosexual unions and heterosexual unions/marriages ought to be considered as two sides of the same coin, both in terms of recognition and consequential benefits. The only deficiency at present is the absence of a suitable regulatory framework for such unions. I believe that this moment presents an opportunity to reckon with this historical injustice and casts a collective duty upon all constitutional institutions to take affirmative steps to remedy the discrimination," Justice Kaul stated in his verdict.
Thus, the next step in due course would be to create an edifice of governance that would give meaningful realization to the right to enter into a union, whether termed as marriage or a union, he added.