The grievance of the petitioners (who are members of the LGBTQIA+ community) is not that society discriminates against them in an informal (and invisible) manner. That is a secondary but an equally important stage of how discrimination pans out against a marginalised class. The petitioners claim that they are discriminated on a more formal (and visible) level. The petitioners contend that the State through the operation of the current legal regime discriminates against the queer community by impliedly excluding the queer community from a civic institution: marriage. The petitioners have invoked the equality code of the Constitution to seek legal recognition of their relationship with their partner in the form of marriage. The petitioners do not seek exclusive benefits for the queer community, which are unavailable to heterosexuals. They claim that the State ought to treat them on par with the heterosexual community. (Para 18)
Mr. Raju Ramachandran, learned senior counsel, made the following submissions:
a. The petitioners have a fundamental right to marry a person of one’s own choice under Articles 14, 15, 19, 21 and 25 of the Constitution, and any exclusion or discrimination, as incorporated in Section 4(c) and other provisions of the SMA, is ultra-vires the Constitution. The denial of their right to marry violates Articles 14, 15, 19, 21 and 25. Article 21 encompasses the right to happiness, which includes a fulfilling union with a person of one’s choice;
b. The exclusion of the petitioners from the institution of civil marriage under SMA, 1954, is inconsistent with the very object of the law, i.e., to facilitate any marriage between two Indians, irrespective of caste, creed or religion;
c. The systemic nature of natal family violence against LGBTQIA+ persons, owing to their sexual or gender identity, and the misuse of the criminal law machinery by the families, often in collusion with local police, makes it imperative for this Court to frame guidelines concerning the police action in dealing with cases of adult and consenting queer and transgender persons[Reliance was placed on Shakti Vahini (supra)].
d. The special provisions for a wife in a heterosexual marriage under the SMA need not be interpreted by this Court while deciding this batch of petitions because they are protective provisions for women in pursuance of the constitutional mandate in Article 15(3). Similarly, gender-specific laws including penal laws need not be subject to any interpretative exercise. Religious personal laws are also not required to be interfered with;
e. Declarations by the court as to rights of people are followed by legislation. For instance, the rights declared in National Legal Services Authority (supra) were given effect to in the Transgender Persons Act;
f. The doctrine of reading-in is well-recognised in Indian jurisprudence; and
g. The Union of India has sought to argue that only Parliament can grant a new ‘socio-legal status of marriage’ to LGBTQ persons, after undertaking extensive consultations and eliciting views from every part of the nation. The rights of the LGBTQIA+ community cannot be made contingent on the opinion of the majority. (Para 22)
Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691; Praga Tools Corpn. v. C.A. Imanual, (1969) 1 SCC 585] (Para 273)
This court hereby summarizes its conclusions and directions as follows:
i. There is no unqualified right to marriage except that recognised by statute including space left by custom.
ii. 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.
iii. The finding in (i) and (ii) should not be read as to preclude queer persons from celebrating their commitment to each other, or relationship, in whichever way they wish, within the social realm.
iv. 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.
v. 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.
vi. 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 toall 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.
vii. Consistent with the statement made before this Court during the course of proceedings on 03.05.2023, 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.
viii. The discussion on discriminatory impacts is in the context of the effects of the existing regimes on queer couples. While a heterosexual couple’s right to live together is not contested, the logic of the discriminatory impact [mentioned in conclusion (vi) above] faced by queer couples cohabiting together, would definition ally, however, not apply to them.
ix. Transgender persons in heterosexual relationships have the freedom and entitlement to marry under the existing statutory provisions.
x. Regulation 5(3) of the CARA Regulations cannot be held void on the grounds urged. 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.
xi. Furthermore, the State shall ensure – consistent with the previous judgment of this Court in K.S. 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.
xii. The above directions in relation to transgender persons are to be read as part of and not in any manner whittling down the directions in NALSA (supra) so far as they apply to transgender persons.
xiii. This court is alive to the feelings of being left out, experienced by the queer community; however, addressing their concerns would require a comprehensive study of its implications involving a multidisciplinary approach and polycentric resolution, for which the court is not an appropriate forum to provide suitable remedies. (Para 523)
That the petitioners seek, what many of us may deem to be the normal, or accepted next step in life upon attaining a certain age, and perhaps take for granted, is not lost on us. Their desire, for social acceptability, in the manner that has been historically known – through the social recognition that marriage affords– and the lack of which causes them feeling of exclusion and hurt, is one that as individuals, especially those donning the robes of justice, we can certainly have deep empathy with. However, we are deeply conscious, that no matter how much we empathize with the outcome sought, the means to arriving at such a destination, must also be legally sound, and keep intact, the grand architecture of our Constitutional scheme. For if we throw caution to the wind, we stand the risk of paving the way (wherein each brick may feel justified) to untold consequences that we could not have contemplated. While moulding relief, as a court we must be cognizant that despite being empowered to see the capabilities of the law in its grand and majestic formulation, we must not be led aground because we are blinded, by its glow (Para 540)
SUPREME COURT OF INDIA
2023 STPL(Web) 351 SC
[2023 INSC 920]
Supriyo @ Supriya Chakraborty & Anr. Vs. Union Of India
Writ Petition (Civil) No. 1011 of 2022 With Writ Petition (Civil) No. 93 of 2023 With T. C. (Civil) No. 5 of 2023 With T. C. (Civil) No. 8 of 2023 With T. C. (Civil) No. 9 of 2023 With T. C. (Civil) No. 11 of 2023 With T. C. (Civil) No. 12 of 2023 With Writ Petition (Civil) No. 1020 of 2022 With Writ Petition (Civil) No. 1105 of 2022 With Writ Petition (Civil) No. 1141 of 2022 With Writ Petition (Civil) No. 1142 of 2022 With Writ Petition (Civil) No. 1150 of 2022 With Writ Petition (Civil) No. 159 of 2023 With Writ Petition (Civil) No. 129 of 2023 With Writ Petition (Civil) No. 260 of 2023 With T. C. (Civil) No. 6 of 2023 With Writ Petition (Civil) No. 319 of 2023 With T. C. (Civil) No. 7 of 2023 With T. C. (Civil) No. 10 of 2023 With T. C. (Civil) No. 13 of 2023 And with Writ Petition (Civil) No. 478 of 2023-Decided on 17-10-2023
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