No marriage right to same-sex couple: Justice Bhat agrees with CJI in SMA, but disagrees on adoption right of queer people

New Delhi [India], October 17 : Three judges of the five-judge Constitution bench disagreed with the Chief Justice of India on adoption rights for LGBTQIA+ people but agreed that the Special Marriage Act, 1956 (SMA) cannot be interpreted in such a manner so as to enable marriage between queer persons.
Justice Ravindra Bhat, Justice Hima Kohli and Justice PV Narasimha have given two separate judgments whereby they have shown certain agreement and disagreement with CJI's order.
There were four judgements separately authored by the CJI and Justices Kaul, Bhat and Narasimha. While CJI and Justice Kaul have the same opinion, Justices Bhat, Narasimha and Kohli have agreed with each other.
The majority judges by 3:2 held that non-heterosexual couples cannot be granted the right to jointly adopt a child. However, CJI and Justice Kaul said that these couples have the right to jointly adopt a child.
Justice Bhat, in its order, said, "Regulation 5(3) of the CARA Regulations cannot be held void on the grounds urged."
Justice Bhat disagrees with the CJI's opinion of allowing non-heterosexual couples to jointly adopt.
"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.
The CJI had said that the government agency Central Adoption Resource Authority's (CARA) guidelines discriminate against atypical, unmarried couples to adopt children.
"Furthermore, the State shall ensure - consistent with the previous judgment of this Court in KS 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. 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," Justice Bhat said.
"We do agree with certain premises and conclusions that he has recorded - they are: (a) that there exists no fundamental right to marry under the Constitution; (b) that the Special Marriage Act, 1956 (hereafter "SMA"), is neither unconstitutional nor can it be interpreted in such a manner so as to enable marriage between queer persons; and that (c) transgender persons in heterosexual relationships, have the right to solemnize marriage under existing legal frameworks," Justice Bhat said in a separate judgement.
Justice Bhat said that there is no unqualified right to marriage except that recognised by statute including space left by custom.
"An entitlement to legal recognition of the right to union - akin to marriage or civil union, or conferring legal status upon the parties to the relationship can be only through enacted law. A sequitur of this is that the court cannot enjoin or direct the creation of such regulatory framework resulting in legal status," Justice Bhat said.
Justice Bhat also pointed out that his finding should not be read as precluding queer persons from celebrating their commitment to each other, or relationship, in whichever way they wish, within the social realm.
"Previous judgments of this court have established that queer and LGBTQ+ couples too have the right to union or relationship (under Article 21) - "be it mental, emotional or sexual" flowing from the right to privacy, right to choice, and autonomy. This, however, does not extend to a right to claim entitlement to any legal status for the said union or relationship," Justice Bhat said.
"The challenge to the SMA on the ground of under classification is not made out. Further, the petitioner's prayer to read various provisions in a 'gender neutral' manner so as to enable same-sex marriage, is unsustainable,"
"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). As held earlier, this court cannot within the judicial framework engage in this complex task; the State has to study the impact of these policies, and entitlements," Justice Bhat.
He also said 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, 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.
Justice Kohli said that he agreed with the view given by Justice Bhat.
Expressing agreement with Justice Bhat, Justice Narasimha said, "I had the privilege of traversing through the opinions of the learned Chief Justice, Justice Sanjay Kishan Kaul and Justice Ravindra Bhat. I am afraid I am unable to agree with the opinions of the Chief Justice and Justice Kaul. I am in complete agreement with the reasoning given and conclusions arrived at by Justice Bhat."
"The State may choose from a number of policy outcomes; they may make all marriage and family-related laws gender gender-neutral, or they may create a separate SMA-like statute in gender-neutral terms to give the queer community an avenue for marriage, they may pass an Act creating civil unions, or a domestic partnership legislation, among many other alternatives. Another consequence may be that rather than the Union Government, the State legislatures take action and enact law or frameworks, in the absence of a central law," the order passed by Justices Bhat and Kohli said.
"What is certain, however, is that in questions of such polycentric nature - whether social, or political - the court must exercise restraint and defer to the wisdom of the other branches of the State, which can undertake wide-scale public consultation, consensus building and reflect the will of the people, and be in their best interest. If as a result of this, a law is enacted that undermines or violates the constitutionally protected rights of an individual, or a group - no matter how miniscule, their right to seek redressal from this Court is guaranteed under Article 32," the order copy read.
The five-judge Constitution bench comprising of the Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha was dealing with a batch of petitions pertaining to marriage equality rights for LGBTQIA+ community.
Around 21 petitions were filed in the Supreme Court seeking legal recognition of same-sex marriage. One of the petitions earlier raised the absence of a legal framework that allowed members of the LGBTQIA+ community to marry any person of their choice. One of the petitions was represented by Senior Advocates Mukul Rohatgi and Saurabh Kirpal briefed by a team of advocates from Karanjawala & Co.
According to one of the petitions, the couple sought to enforce the fundamental rights of LGBTQ+ individuals to marry any person of their choice and said that "the exercise of which ought to be insulated from the disdain of legislative and popular majorities." The petitioners, further, asserted their fundamental right to marry each other and prayed for appropriate directions from this Court allowing and enabling them to do so.