Earlier this year, a batch of 20 petitions were heard by the Supreme Court of India in the marriage equality matter. These petitions covered a range of issues, including challenges to the secular and personal marriage laws for discriminating against trans and queer persons, challenges to the secular adoption laws for denying trans and queer couples joint parenthood, and a demand for the recognition of atypical intimacies beyond marriage.
The court decided to entertain only those petitions that challenged secular laws like the Special Marriage Act (SMA), 1954, Foreign Marriage Act (FMA), 1969, and certain adoption regulations [Regulation 5(3), Adoption Regulations 2020, Juvenile Justice (Care and Protection of Children) Act, 2015]. The court left personal laws like the Hindu Marriage Act (HMA), 1955 outside the purview of the matter.
During the course of hearings, the central government declared its intention to set up a high-powered committee chaired by the Cabinet Secretary for the purpose of identifying and determining the scope of entitlements which can be extended to trans and queer couples.
The judgement was delivered 3:2, with Justices Ravindra Bhat, Hima Kohli and Pamidighantam Sri Narasimha in the majority, and Justices Dhananjaya Y. Chandrachud and Sanjay Kishan Kaul in the minority. Justice Bhat authored a single opinion on behalf of himself and Justice Kohli. This article discusses the outcome of the case and outlines possibilities for future advocacy and litigation to expand the civil and political rights of trans and queer communities.
Issue 1: Is there a fundamental right to marry?
No – unanimous verdict.
Justice Chandrachud noted that marriage, while ever evolving, is a social institution that preceded the State. He noted that relationships operate within the ‘private space’ (and consequently fall within the folds of the right to privacy) and are thus shielded from State intervention. However, the State has a legitimate interest in regulating relationships in order to democratise them given that relationships involving two people may be unequal. In simple words, the State merely regulates marriage with the objective of democratising marriage. Such regulation by the State does not render marriage the status of a Fundamental Right. Consequently, the argument that the Constitution recognises a right to marry because of the meaning that is accorded to it by legislation (through State regulation) does not hold.
Justice Bhat observed that marriage has historically been a union solemnised according to religious or customary practices. Laws on marriage like the HMA and Muslim Personal Law (Shariat) Application Act, 1937 merely codified such practices and in some cases such codification also introduced reforms in the form of specifying the age of consent for marriage, and grounds for divorce. As the origin of marriage cannot be attributed to the State and State regulation has largely been informed by the objectives of codification and reform, it cannot be said that there is a fundamental right to marry. Justice Narasimha agreed with this opinion and added that marriage is a social institution informed by religion and customs and the State’s codification of marriage with the objective of reform continues to leave space for customary and religious practices. As this is the nature of marriage, the right of a consenting couple to be recognised within it will inevitably be restricted.
Outcome: There is no fundamental right to marry under the Constitution.
Issue 2: Does the SMA discriminate against trans and queer people?
No – split verdict (3:1:1).
Justice Chandrachud did not directly address the issue of whether the SMA discriminates against trans and queer persons by not permitting same-sex / gender marriages. He observed that an exercise to determine the constitutionality of SMA was futile because the court did not have the power to grant a remedy, it being the purview of the legislature.
Justice Kaul declared that the SMA violates Article 14 of the Constitution because it excludes non-heterosexual relationships from its scope. However, he observed that the court did not have the institutional capacity to provide a remedy to address the violation.
Justice Bhat (speaking for himself and Justice Kohli) noted that the SMA does not discriminate against trans and queer persons. One of the reasons in support of this observation is that the objective of the SMA is to enable inter-faith heterosexual marriages and it cannot be declared to be unconstitutional in terms of under-inclusion, that is, for failing to include trans and queer persons. He also pointed out the issues that a gender-neutral reading of the SMA would lead to in light of the patriarchal nature of families in India, which renders women vulnerable, thus requiring gendered laws pertaining to maintenance, alimony and domestic violence.
Justice Narasimha agreed with Justice Bhat’s reasoning and held that the SMA does not discriminate against trans and queer persons. He noted: “[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.”
Outcome: The constitutionality of the SMA and FMA was upheld. It is now up to the legislature to amend the existing marriage laws to include trans and queer persons or to enact separate laws on the issue.
Issue 3: Can trans persons and intersex persons who identify within the binary genders of male or female marry under the existing marriage laws?
Yes – unanimous verdict.
Trans persons and intersex persons who identify within the binary genders of male or female, can marry a person of the opposite gender under all the marriage laws – both secular and personal.
Issue 4: Can trans persons or intersex persons who are non-binary, that is, who do not identify within the binary of male or female, marry under the existing marriage laws?
No – unanimous verdict.
Only trans persons or intersex persons who are in a heterosexual relationship, that is, a trans man and a cis woman, or a trans woman and a cis man, or a trans man and a trans woman, can marry their partner under the existing marriage laws – both secular and personal.
Issue 5: Is there a fundamental right to form civil unions?
No – split verdict (3:2).
The majority, namely Justices Bhat, Narasimha and Kohli, held that there was no fundamental right to form a civil union. The minority, Justices Chandrachud and Kaul, held that there was a right to form civil unions and such a right flowed from Articles 19, 21 and 25 of the Constitution.
Justice Chandrachud identified the right to form a civil union as a liberty right. He noted that the State has an obligation to recognise such unions and grant them benefits under law. Justice Kaul agreed and held that such a right must be available to everyone regardless of gender identity or sexual orientation. He directed that the high-powered committee to be set up by the central government should identify the scope of benefits that must be available to such unions.
Justices Bhat, Narasimha and Kohli disagreed. Justice Bhat noted that while all persons, including trans and queer persons, have the right to form relationships with a partner of their choice and cohabit with them, the court could not oblige the State to frame a law or regulation which extended legal recognition to such an expression of choice. Justice Narasimha noted that directing the State to extend legal recognition to a civil union would violate the doctrine of separation of powers.
Outcome: There is no fundamental right to form a civil union. However, there is a right to choose a partner, cohabit with them and enter into a physically intimate relationship with them. Such a right has already been recognised by the Supreme Court in Navtej Singh Johar & Others Vs. Union of India Ministry of Law and Justice which decriminalised homosexuality, and other judgements like Shakti Vahini Vs. Union of India wherein the court issued directions to the State to protect inter-caste couples and take steps to address honour killings. Incidentally, the court stated that trans and queer persons can also celebrate their commitment in the social realm in whichever manner they choose.
Issue 6: Can all trans and queer persons adopt jointly under adoption laws?
No – split verdict (3:2).
The majority refused to strike down the challenged adoption regulations. Justice Bhat noted that the State must, while centering the welfare of the child principle, consider whether joint adoptions can be enabled for unmarried couples. The minority held that adoption regulations that prohibit unmarried couples from jointly adopting children are unconstitutional. Justice Chandrachud noted that such regulations disproportionately impact trans and queer persons as most trans and queer persons, unlike heterosexual persons, cannot marry under existing marriage laws.
Outcome: Not all trans and queer persons can adopt jointly under secular adoption laws. However, trans persons who are legally married can adopt jointly. In this context, adoption means adoption under the provisions of the secular Juvenile Justice (Care and Protection of Children) Act, 2015.
Issue 7: What has the court asked the high-powered committee to do?
As mentioned earlier, the central government has expressed its intention to set up a committee to define and outline the scope of entitlements that can be extended to trans and queer persons in unions.
Justice Chandrachud directed that the committee must, amongst other things, consider how queer partners can be enabled to be treated as a part of the same family for the purpose of acquiring a ration card, opening joint bank accounts, and nominating their partner upon their death. Further, such a committee must have diverse representation and include members of the trans and queer communities. The report of the committee must be implemented at the administrative level by the central and state governments.
Justice Kaul observed that the committee must determine the scope of benefits available to trans and queer persons in unions.
Justice Bhat directed that the committee must undertake a comprehensive examination of all the issues that he outlined in his opinion and directions. He directed the State to address the discrimination that trans and queer persons face in relation to accessing compensatory benefits and social welfare entitlements for which marriage is a pre-condition. Such benefits include those in relation to employment like provident fund, gratuity, family pension, employee state insurance, and medical insurance. Justice Narasimha did not have any separate observations in relation to the role of the committee. However, it can be inferred that he endorsed Justice Bhat’s directions in relation to the role of the committee as he agreed with Justice Bhat’s opinion.
What does this mean for advocacy?
First, in light of its own representation as well as the directions issued by the majority of the judges, the central government has to set up a committee. Second, the directions issued by Justice Bhat (who was a part of the majority) are binding. Thus, while outlining its agenda, the committee has to ensure that his directions are reflected in the agenda. It is also worth noting that Justice Chandrachud’s directions in relation to the duties of the committee were largely aligned with that of Justice Bhat. Finally, the central government itself indicated that the committee would be tasked with identifying and outlining of entitlements available to trans and queer persons in unions. This commitment must be reflected in the committee’s agenda.
What are the challenges involved?
There is no clarity regarding who will be the members of the committee, the timelines to be followed by the committee, and the implementation status of the recommendations of the committee. Advocacy must be directed towards ensuring that there is plurality of representation on the committee (including members of the trans and queer communities), and that the agenda of the committee is reflective of the central government’s promises, the directions issued by the court, and the demands / needs of the trans and queer communities. Justice Chandrachud’s directions in regard to representation and implementation of the committee’s report have persuasive value in this regard.
Issue 8: Do the state legislatures have the competence to enact or amend family laws (including marriage laws) to ensure inclusion of trans and queer persons?
Yes, they do!
Both the central legislature and the state legislatures can legislate on matters related to family laws, including marriage. The court too clarified that the state legislatures have the competence to enact separate marriage laws. This means that a state government, if it chooses to, can amend central family laws like the SMA as well as enact new family laws to recognise marriage equality and ensure trans and queer inclusion across all spheres of the family. This also holds true for labour laws, including labour benefits and social security benefits which usually cover the employees / workers and their spouse.
What does this mean for advocacy?
Advocacy can be directed towards the state governments to amend existing family laws or enact new family laws to extend legal recognition to trans and queer families in relation to adult unions (marriage, civil unions, and non-marital unions such as atypical families), parent-child relations, and succession.
Issue 9: What about anti-discrimination issues?
Justices Bhat, Chandrachud, and Kaul all noted that discrimination is a part of the day-to-day lives of trans and queer people. Justice Bhat issued a direction to the State to address the discrimination that trans and queer couples face in relation to social welfare entitlements and employment benefits in cases where such benefits can only be available to legally married couples. Justice Chandrachud spoke about the urgent need for anti-discrimination laws which prohibit discrimination on the basis of sexual orientation and give full effect to all civil and social rights of trans and queer persons. Justice Kaul agreed with him on the need for an anti-discrimination law that prohibits discrimination on the basis of sexual orientation. Justice Chandrachud also directed the State to establish helplines for trans and queer persons as well as trans and queer inclusive shelter homes in all the districts like the Garima Greh shelters supported by the Ministry of Social Justice & Empowerment, Government of India.
What does this mean for advocacy?
As Justice Bhat was a part of the majority, his directions in relation to discrimination are binding. Justices Chandrachud and Kaul, though in the minority, did not contradict Justice Bhat. They can be said to have supplemented Justice Bhat’s opinion and their directions consequently have tremendous persuasive value.
Issue 10: What about medical procedures and treatments (such as conversion therapy) that trans and queer persons are forced to undergo?
Justice Bhat directed the State to take suitable steps to ensure trans and queer persons are not subject to any involuntary medical or surgical treatment. Justice Chandrachud directed that treatments offered with the objective of changing a person’s gender identity or sexual orientation must cease with immediate effect. He also directed the State to ensure infants with intersex variations are not subject to ‘sex-corrective surgeries’ (intersex genital mutilations) at an age when they cannot comprehend or consent to such procedures. Another critical direction issued by Justice Chandrachud relates back to the Supreme Court’s prior decision in the 2014 NALSA verdict on transgender rights, specifically on the right to chosen gender identity – namely no person must be forced to undergo any medical procedure as a prerequisite for legal recognition of their gender identity.
What does this mean for advocacy?
Both judges agreed that trans and queer persons being forced to undergo involuntary medical procedures must stop. The source of such coercion can be read widely to include the natal family, medical establishments, and the State itself. Such directions will enable civil society to make claims for reform of medical practices and demand the outlawing of practices like intersex genital mutilations and conversion therapy. Such demands are bolstered by the Madras High Court’s judgement in Arunkumar & Another Vs. The Inspector General of Registration & Others (2019), where it held that ‘sex-corrective surgeries’ on intersex infants constituted a violation and directed the Government of Tamil Nadu to prohibit hospitals from engaging in such practices. Similarly, the Kerala High Court in Queerala & Another Vs. State of Kerala & Others directed the State to act against the practice of forced conversions and frame guidelines in the matter.
Second, Justice Chandrachud’s direction in pursuance of the NALSA verdict bolsters the constitutional challenge to the Transgender Persons (Protection of Rights) Act, 2019 and the Transgender Persons (Protection of Rights) Rules, 2020, which require a trans person to undergo a medical procedure as a prerequisite for being granted legal recognition within the binary of male or female.
Issue 11: What about harassment by the police and the natal family?
Justice Bhat directed “the State shall ensure . . . that the choice exercised by queer and LGBTQ couples to cohabit is not interfered with and they do not face any threat of violence or coercion. All necessary steps and measures in this regard shall be taken.” Thus, the State is duty bound to create enabling conditions for trans and queer persons to exercise their right to choose their partner and cohabit with them. The State must protect such couples against the risks that they may face in cohabiting. Justice Chandrachud’s specific directions to the police machinery can be interpreted as clarifying Justice Bhat’s opinion. Similar directions were issued by the Madras High Court in S. Sushma & Another Vs. Commissioner of Police & Others in 2021.
Justice Chandrachud directed that the police cannot force trans and queer persons to return to their natal families, and must ensure due protection to trans and queer persons and couples when they file a complaint apprehending violence from their family. When an FIR is sought to be registered against trans and queer persons or couples in connection with their relationship, the police must carry out a preliminary inquiry to determine whether there has been a cognisable offence. If the persons concerned are adults and in a consensual relationship, the complaint must be withdrawn after recording a statement to this effect. In August this year, the Jalpaiguri bench of Calcutta High Court quashed a false FIR filed against a queer activist for kidnapping an adult trans person who left home of their own free will in Avinaba Dutta & Another Vs. State of West Bengal & Others.
What does this mean for advocacy?
The majority and minority opinions can be read together to effectively advocate for reforms in the police machinery. It is now clear that the State has an affirmative duty to create enabling conditions for trans and queer persons to exercise their fundamental right to choose and be with their partners. This requires taking active steps to address police harassment as well as protect trans and queer persons who are at risk of violence for exercising their rights.
Read a Bengali summary of this article here, translation courtesy Jia Mata – Editor.
Read also Marriage Equality – Petitions, Pushback and Politics by Namrata and Shreyashi, and All This Marriage (Equality) Talk! by Pawan Dhall, both in the April 2023 issue of Varta – Editor.