The verdict of the Supreme Court in Supriyo vs Union of India, denying the LGBTQIA+ community the right to marry is deeply disappointing. There were four opinions among the five judges, making it a difficult judgment to decipher. The following conclusions, however, are clear. The court was unanimous in finding that there was no constitutional right to marry. All five judges also agreed that the Special Marriage Act could not be interpreted to include the right of LGBTQIA+ people to marry. The court was also unanimous in recognising the right of transgender and intersex persons in heterosexual relationships to marry.
A broader point of principled agreement among the five judges was with respect to holding the line on LGBTQIA+ rights. There was to be no backsliding. The majority, which refused to recognise the rights that flow out of intimate unions, was also clear that the “right to relationship” fell “within Article 21”. This included the right of LGBTQIA+ people to “choose a partner, cohabit and enjoy physical intimacy with them, to live the way they wish to, and other rights that flow from the right to privacy, autonomy and dignity”. The majority also held that “whenever their right to enjoyment of such relationship is under threat of violence, the state is bound to extend necessary protection”.
The nub of the disagreement was with respect to the recognition of the rights that arise out of unions as well as the right of unmarried couples to adopt. On both these questions, the majority, comprising Justices S.R. Bhat, Hima Kohli, and P.S. Narasimha, demurred from recognising these rights. The minority comprised Chief Justice D.Y. Chandrachud and Justice S.K. Kaul.
Right to intimate association
Chief Justice Chandrachud and Justice Kaul went several steps further than the baseline established by Navtej Singh Johar vs Union of India, holding that “all persons have a right to enter into an abiding union with their life partner. This right, undoubtedly, extends to persons in queer relationships.” This right to intimate association was read into the right to association in Article 19(1)(c), Article 21, and Article 25. They laid down that the state was duty-bound to grant rights to those in such intimate associations, including labour law benefits, insurance benefits, and other such ancillaries of a union or an intimate association. The state was obliged to “recognise a bouquet of entitlements which flow from such an abiding relationship of this kind”.
They also recognised the right of unmarried couples to adopt and read down the Central Adoption Resource Authority (CARA) circular that restricted adoption only to married couples.
Chief Justice Chandrachud said that the CARA circular “disproportionately impacts the queer community” by restricting adoption to married couples in a “stable marital relationship for at least two years”. His logic was that the restriction assumes that only heterosexual couples make good parents.
“Such an assumption perpetuates a stereotype based on sexuality (that only heterosexuals are good parents and others make bad parents) which is prohibited by Article 15 of the Constitution,” he said.
Justices Chandrachud and Kaul sought to find a middle ground between full spectrum marriage equality and the state of rightlessness currently occupied by queer couples. Unfortunately, they did not get a buy-in from the other justices.
- The recent Supreme Court verdict in the case of Supriyo vs Union of India has stirred widespread disappointment by denying LGBTQIA+ individuals the legal right to marry.
- The ruling, with four different opinions among the five judges, has raised complex questions about the recognition of LGBTQIA+ rights in India.
- While the court unanimously found no constitutional right to marry, there was agreement on recognising the privacy and autonomy of transgender and intersex individuals in heterosexual relationships.
The majority judgment
The majority judgment, authored by Justice Bhat, was vehemently opposed to the recognition of civil unions and held that the demand for recognition of civil unions is in effect a demand for “a right of access to a publicly created and administered institution”. This required the “creation of the institution” through “state action” which could not be “compelled through the agency of this court”.
Justice Bhat’s majority opinion also strongly disagreed with the Chief Justice on reading down the restriction of adoption rights under the Juvenile Justice Act so as to include unmarried couples. Justice Bhat concluded that “‘to read the law in the manner adopted by the learned Chief Justice, with all due respect, would have disastrous outcomes… this, therefore, would not be in the best interest of the child”.
Justice Bhat, however, was careful to note: “This is not to say that unmarried couples—whether queer or heterosexual—are not capable or suitable to be adoptive parents.” He leaves it finally to the legislature to decide on the matter, keeping in mind the “best interest of the child”.
Is the disagreement between the majority and the minority opinions, then, a difference in judicial philosophy? Justice Bhat would have us believe so. In fact, he even takes issue with a part of the Chief Justice’s opinion in Navtej, noting that the Chief Justice was wrong to state that “social institutions must be arranged in such a manner that individuals have the freedom to enter into relationships untrammelled by binary of sex and gender and receive the requisite institutional recognition to perfect their relationships”. In Justice Bhat’s opinion, these observations, requiring the state to “order such social institutions” travels “beyond the scope of the court’s remit” and “have to be viewed as obiter dicta”.
This judicial philosophy of not entering into the sphere of the legislature seems, however, to fall apart in the judgment delivered by Justice Bhat in Dr. Balram Singh vs Union of India (delivered three days after Supriyo vs Union of India),in which helays down directives to ensure implementation of the Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013.
For Justice Bhat, the statute prohibiting manual scavenging is “not a regular statute: it is emancipatory in character and is a manifestation of the constitutional code of upliftment”. The fact that the Act has remained a dead letter is “disquieting”, and he notes: “Our constitutional scheme does not approve of a situation where parliamentary enactments are rendered dead-letter by executive inaction.”
The interpretative leap that the judgment takes is to read the non-provision of “minimum protective gear and cleaning devices” to those in hazardous employment as “forced labour” and “prohibited under the Constitution” in Article 23 (Article 23 prohibits begging and other forms of forced labour and mandates its criminalisation).
Justice Bhat reads the statutory requirement to provide “protective gear and cleaning devices” as “not mere statutory rights or rules, but [as] entitlements and it is due to these entitlements that the provisions of the 2013 Act are in consonance with the Constitution”.
Justice Bhat interprets the provisions of the statute prohibiting manual scavenging within the broader mandate of the Constitution. The prohibition of manual scavenging is seen as taking forward the constitutional prohibition of the practice of untouchability (Article 17) as well as the prohibition of forced labour (Article 23). The statute, in Justice Bhat’s analysis, is also meant to take forward the mandate of equality in Article 15(2).
Such a “liberative” reading leads him to recognise that entitlements have to be given to the “families of those persons who died while working in sewers or septic tanks”. The directions, inter alia, mandate the paying of Rs.30 lakh as compensation for sewer deaths to dependents (increased from Rs.10 lakh) and mandate that the “Union, State and Union Territories are hereby required to set up scholarships to ensure that the dependents of sewer victims, (who have died, or might have suffered disabilities) are given meaningful education”.
Was this possible in Supriyo vs Union of India as well? For Chief Justice Chandrachud and Justice Kaul, it was not only possible but also necessary. This results in the series of directions issued by them both, inter alia, to “Union Government, State Governments, and Governments of Union Territories” to “ensure that the queer community is not discriminated against because of their gender identity or sexual orientation”; to “ensure that there is no discrimination in access to goods and services to the queer community, which are available to the public”.
The police are also directed to, inter alia, 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” as well as “not force queer persons to return to their natal families if they do not wish to return to them”.
It is troubling that an otherwise remarkably empathetic judge such as Justice Bhat did not join Chief Justice Chandrachud and Justice Kaul in this basic statement of a bare minimum obligation of the state to its LGBTQIA+ citizens and, in fact, chose to explicitly state that “we do not agree with the conclusions arrived at by the Learned Chief Justice and the directions issued”.
There is a fundamental inconsistency between Justice Bhat’s opinion in Dr. Balram Singh vs Union of India and his majority opinion in Supriyo vs Union of India in its application of legal doctrine. While with respect to those in manual scavenging, Justice Bhat enters into policy domains to (rightly) make the state accountable to its constitutional obligations, he demurs with respect to LGBTQIA+ citizens. One hopes that the minority opinions by Chief Justice Chandrachud and Justice Kaul speak to the “intelligence of a future day” and a future court will overturn the majority that is today perpetuating an egregious injustice. Until that time, the dream of LGBTQIA+ equality will remain a “dream deferred”.
Arvind Narrain is an advocate and founder member of the Alternative Law Forum, Bengaluru.