In a landmark judgment on marriage equality, Chief Justice of India DY Chandrachud today said an individual’s right to enter into a union cannot be restricted on the basis of sexual orientation. Supporting adoption rights for queer couples, he said there is nothing to probe that only heterosexual couples can provide stability to a child.
Underlining that the five-judge bench hearing the matter has authored four separate judgments, the Chief Justice asked the centre should proceed with a committee it has formed to address practical concerns of same-sex couples, such as getting ration cards, pension, gratuity and succession issues.
The centre had on May 3 told the court that it plans to form a committee headed by a cabinet secretary to explore administrative solution to problems faced by same-sex couples without delving into the marriage equality question.
Choosing a life partner is an integral part of choosing one’s course of life, the Chief Justice said. “Some may regard this as the most important decision of their life. This right goes to the root of the right to life and liberty under Article 21,” he said.
“The right to enter into union includes the right to choose one’s partner and the right to recognition of that union. A failure to recognise such associations will result in discrimination against queer couples,” the Chief Justice said, adding, “the right to enter into union cannot be restricted on the basis of sexual orientation”.
Disagreeing with the centre’s argument that marriage equality is an urban, elite concept, the Chief Justice said, “Queerness is not urban elite. Homosexuality or queerness is not an urban concept or restricted to the upper classes of the society.”
Justice Kaul agreed with the Chief Justice that there is a need for an anti-discrimination law.
“Same-sex relationships have been recognised from antiquity, not just for sexual activities but as relationships for emotional fulfilment. I have referred to certain Sufi traditions. I agree with the judgment of the Chief Justice. It is not res integra for a constitutional court to uphold the rights and the court has been guided by the constitutional morality and not social morality. These unions are to be recognised as a union to give partnership and love,” he said.
Justice Bhat agreed that queerness is “neither urban nor elitist”, but added that he does not agree with the Chief Justice’s directions.
“The judgment of the Chief Justice propounded a theory of a unified thread of rights and how lack of recognition violated rights. However, when the law is silence, Article 19(1)(a) does not compel the State to enact a law to facilitate that expression,” he said.
Justice Bhat said the court cannot create a legal framework for queer couples and it is for the legislature to do as there are several aspects to be taken into consideration.
Earlier, the Chief Justice disagreed with Justice Bhat’s approach. “My learned brother acknowledges the discrimination against the queer couples but does not issue directions. I cannot come to terms with such an approach.”