Supreme Court of India
Supriyo @ Supriya Chakraborty vs Union Of India on 17 October, 2023
Bench: Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli, Pamidighantam Sri Narasimha
Reportable
2023 INSC 920
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
Writ Petition (Civil) No. 1011 of 2022
Supriyo @ Supriya Chakraborty & Anr. …Petitioners
Versus
Union of India …Respondent
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
Signature Not Verified
With
Digitally signed by
Sanjay Kumar
Writ Petition (Civil) No. 1105 of 2022
Date: 2023.10.17
16:19:34 IST
Reason:
With
Writ Petition (Civil) No. 1141 of 2022
1
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
2
JUDGMENT
Dr Dhananjaya Y Chandrachud, CJI
Table of Contents
A. Background ................................................................................................... 8
i. The decision of this Court in Navtej Singh Johar .................................. 8
ii. Societal violence against the queer community .................................. 11
B. Submissions ............................................................................................... 18
C. Reliefs sought in the proceedings ............................................................ 64
D. Analysis ....................................................................................................... 68
i. This Court is vested with the authority to hear this case ................... 68
a. Article 32 vests this Court with the power to enforce the rights in Part III
of the Constitution ......................................................................................... 68
b. Judicial review and separation of powers .............................................. 72
c. The power of this Court to enforce rights under Article 32 is different
from the power of the legislature to enact laws ............................................ 74
d. The power of judicial review must be construed in terms of the
Constitution of India and not in terms of the position of law in other
jurisdictions ................................................................................................... 76
e. The role of courts in the democratic process......................................... 78
3
ii. Is queerness ‘un-Indian’? Who is an Indian? What practices are
Indian? ............................................................................................................ 81
a. Queerness is a natural phenomenon which is known to India since
ancient times ................................................................................................ 81
b. Queerness is not urban or elite ............................................................. 83
c. The rise of Victorian morality in colonial India and the reasons for the
re-assertion of the queer identity .................................................................. 91
d. Who is an Indian and what practices are Indian? .................................. 95
iii. Understanding the institution of marriage ........................................... 95
a. There is no universal conception of marriage........................................ 95
b. The conception of marriage is not static .............................................. 100
I. Sati ................................................................................................... 101
II. Widow remarriage ............................................................................ 101
III. Child marriage and the age of consent ............................................ 102
IV. Other violence in marriage ............................................................... 103
V. Inter-caste and interfaith marriage ................................................... 104
VI. Divorce ............................................................................................. 107
VII. The implications of the discussion in this segment .......................... 108
c. The implications of this discussion for the right of queer persons to
marry .......................................................................................................... 110
iv. The significance of marriage as a socio-legal institution ................. 111
v. The nature of fundamental rights: positive and negative postulates
122
4
vi. Approaches to identifying unenumerated rights ............................... 126
vii. The scope of the State’s regulation of the ‘intimate zone’................ 128
viii. The right to marry .............................................................................. 133
a. Have the courts recognised the right to marry?................................... 133
b. There is no fundamental right to marry................................................ 136
c. The challenge to the SMA ................................................................... 140
I. The scheme of the SMA .................................................................. 140
II. The decision of the South African Constitutional Court in Fourie .... 143
III. The decision of the UK House of Lords in Ghaidan ......................... 147
IV. Institutional limitations with respect to the interpretation of SMA ..... 150
d. The challenge to the FMA ................................................................... 155
ix. The right to enter into a union ............................................................. 157
a. The goal of self-development and what it means to be human ........... 157
b. The rights under Article 19 .................................................................. 161
I. The right to freedom of speech and expression and to form intimate
associations ............................................................................................ 161
II. The right to settle in any part of India............................................... 165
c. Facets of the right to life and liberty under Article 21 .......................... 167
I. The atypical family ........................................................................... 167
II. The right to dignity, autonomy, and privacy ..................................... 170
III. The right to health ............................................................................ 172
d. The right to freedom of conscience under Article 25 ........................... 174
x. Restrictions on the right to enter into a union ................................... 179
5
a. The right to enter into a union cannot be restricted based on sexual
orientation ................................................................................................... 179
b. Recognizing the right of queer persons to enter into a union will not lead
to social chaos ............................................................................................ 183
xi. The right of transgender persons to marry ........................................ 184
a. Sex, gender, sexual orientation ........................................................... 185
b. The judgment of this Court in NALSA and the Transgender Persons Act
186
c. Transgender persons in heterosexual relationships can marry under
existing law ................................................................................................. 191
I. The right against discrimination under the Transgender Persons Act
191
II. Remedies for the infringement of Section 3 ..................................... 194
III. Harmonious interpretation of the laws governing marriage and the
Transgender Persons Act ....................................................................... 197
xii. The conditions for the exercise of the rights of LGBTQ persons .... 200
a. The right of queer persons under the Mental Healthcare Act .............. 200
b. The right of LGBTQ persons to freedom from coercion from their
families, the agencies of the state, and other persons ............................... 202
xiii. The right of queer persons to adopt children ................................. 204
a. Challenge to the Adoption Regulations ............................................... 204
I. Regulation 5(3) of the Adoption Regulations exceeds the scope of the
JJ Act ...................................................................................................... 208
6
II. Regulation 5(3) of the Adoption Regulations violates Article 14 of the
Constitution ............................................................................................. 211
III. Regulation 5(3) of the Adoption Regulations violates Article 15 of the
Constitution ............................................................................................. 215
b. Challenge to the CARA Circular .......................................................... 224
E. Response to the opinion of Justice Ravindra Bhat............................... 227
F. Directions to obviate discrimination....................................................... 239
G. Conclusions and orders of enforcement................................................ 242
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PART A
1. The Transfer Petitions in these proceedings are allowed.
2. The terms ‘LBGTQ’ and ‘queer’ are used interchangeably and as umbrella
expressions to capture the various sexual orientations and gender identities that
exist.
3. The term ‘union between queer persons’ or similar terms have been used to
mean relationship between parties where one or both of them have an atypical
gender identity or sexual orientation.
A. Background
i. The decision of this Court in Navtej Singh Johar
4. Section 377 of the Indian Penal Code 1860 1 criminalizes “carnal intercourse
against the order of nature.” History is replete with instances of the State having
used the provision to rip-off the dignity and autonomy of individuals who engaged
in sexual activity with persons of the same sex. 2 A colonial provision which
reflected Victorian morality continued in the statute after Independence. Section
377 was also weaponized against gender non-conforming persons. 3 Intimate
relationships and activities were subject to public ridicule and judicial scrutiny. By
criminalizing sexual behavior of homosexual and gender non-conforming persons,
the State stripped them of their identity and personhood. Those who defied the
mandate of the law and dodged prosecution were socially ostracized.
1 “IPC”
2 Meharban Nowshirwan Irani v. Emperor, AIR 1934 Sind. 206
3 Queen Empress v. Khairati, ILR (1884) 6 All 204
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PART A
5. In Naz Foundation v. Government of NCTD 4, a Division Bench of the High
Court of Delhi read down Section 377 of the IPC to exclude consensual
homosexual sexual activity between adults. On appeal, a two-Judge Bench of this
Court in Suresh Kumar Koushal v. Naz Foundation 5 reversed the judgment of
the High Court of Delhi. A writ petition seeking to declare the right to sexuality, the
right to sexual autonomy, and the right to choice of a sexual partner as a part of
the rights guaranteed under Article 21 of the Constitution and to declare Section
377 of the IPC to be unconstitutional was listed before a three-Judge Bench of this
Court. The petitioners argued that the matter must be referred to a five-Judge
Bench in view of the decisions of this Court in National Legal Services Authority
v. Union of India6 and Justice KS Puttaswamy (9J) v. Union of India. 7 In
NALSA (supra), this Court held that the state must recognize persons who fall
outside the male-female binary as ‘third gender persons’ and that they are entitled
to all constitutionally guaranteed rights. It also directed the Union and State
Governments to grant legal recognition to the self-identified gender of transgender
persons, including when they identify as male and female. In Justice KS
Puttaswamy (9J) (supra), this Court held that the Constitution protects the right of
a person to exercise their sexual orientation. The three-Judge Bench referred the
judgment of this Court in Suresh Kumar Koushal (supra) to a larger Bench. The
three-Judge Bench also observed that the “order of nature” referred to in Section
377 of the IPC is not a constant but is guided by social morality as opposed to
4 (2009) 160 DLT 277
5 (2014) 1 SCC 1
6 AIR 2014 SC 1863
7 AIR 2017 SC 4161
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PART A
constitutional values, and that a section of the population should not remain in a
constant state of fear while exercising their choices.
6. This Court answered the reference in Navtej Singh Johar v. Union of
India 8, holding that Section 377 is unconstitutional to the extent that it criminalizes
consensual sexual activities by the LGBTQ community. It held that: (i) Section 377
violated Article 14 because it discriminated between heterosexual persons and
non-heterosexual persons, although both groups engage in consensual sexual
activities 9; (ii) While Article 14 permits reasonable classification based on
intelligible differentia, a classification based on an ‘intrinsic and core trait’ is not
reasonable; Section 377 classified individuals on the basis of the core trait of
‘sexual orientation’ 10; (ii) Article 15 prohibits discrimination based on ‘sex’ which
includes within its meaning sexual orientation as well11 and Section 377 indirectly
discriminated between heterosexual persons and the LGBTQ community based on
their sexual orientation; and (iii) Section 377 violated Article 19(1)(a) because
Section 377 inhibited sexual privacy. 12
7. One of us (DY Chandrachud, J.) observed that the right to sexual privacy
also captures the right of the LGBTQIA+ community to navigate public places free
from State interference. The community does not face discrimination merely based
on their private ‘sexual’ activities. It extends to their identity, expression, and
existence. The Court declared that the members of the LGBTQIA+ community are
entitled to the full range of constitutional rights including the right to choose whom
8 2018 1 SCC 791
9 Chief Justice Dipak Misra in Navtej Singh Johar
10 Justice Indu Malhotra in Navtej (supra)
11 Justice DY Chandrachud in Navtej (supra)
12 Chief Justice Dipak Misra and Justice DY Chandrachud in Navtej (supra)
10
PART A
to partner with, the ability to find fulfilment in sexual intimacies, the benefit of equal
citizenship, and the right not to be subject to discriminatory behaviour. This Court
in Navtej (supra) went beyond decriminalizing the sexual offence. It recognized
that persons find love and companionship in persons of the same gender;
protected the class against discriminatory behavior; and recognized the duty of the
State to end the discrimination faced by the queer community.
ii. Societal violence against the queer community
8. Despite the de-criminalization of queer relationships and the broad sweep
of the decision in Navtej, members of the queer community still face violence and
oppression, contempt, and ridicule in various forms, subtle and not so subtle, every
single day. The State (which has the responsibility to identify and end the various
forms of discrimination faced by the queer community) has done little to
emancipate the community from the shackles of oppression. The ghost of Section
377 lives on in spite of the decriminalization of the sexual offence and the
recognition of the rights of queer persons in Navtej (supra).
9. The law, in the form of Section 377, imposed social morality on homosexual
relationships. The legal regime was the chariot which propels social norms on love
and unions. The impact of Section 377 on society must be viewed in terms of its
effect on the social conceptions of love and companionship. Section 377 enforced
morality through law by shaping beliefs about queer identity. This far-reaching
impact of the legal regime is one of the primary reasons for the continuing,
widespread revulsion against the LGBTQIA+ community even after homosexual
sexual acts have been decriminalized. The lack of sensitization and the ensuing
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PART A
discrimination has pushed the members of the community into the proverbial
closet. For many members of the LGBTQIA+ community, expressing their sexual
orientation and gender identity is an act of defiance which requires strength and
courage. The ostracism extends across the full range of social values, from
parenting to public office.
10. The discrimination faced by the LGBTQIA+ community in various forms is,
in so many ways, a product of social morality as much as it is a product of the lack
of effort from the State to sensitize the general public about issues concerning
queer rights. Social norms and beliefs which were internalised over centuries were
not overhauled at the stroke of midnight when the nation became the source of its
destiny and when the Constitution was adopted in 1950. Similarly, the stigma
against the members of the LGBTQIA+ community did not end with a stroke of the
pen when this Court decriminalized consensual homosexual sexual activity.
11. Despite this Court recognizing that sexual orientation is a core and innate
trait of an individual, the members of the queer community continue to face
economic, social and political oppression in both visible and invisible ways. At a
primary level, they face oppression because of their inability to express their
gender identity due to the fear of public disapproval. Researchers have recorded
incidents where the public has subjected members of the queer community to
violence for publicly displaying affection towards one another. A woman who
eloped with another woman was beaten, stripped and paraded around the village
within a blackened face and a garland of shoes around her neck. 13 Queer
13 Maya Sharma, Loving Women: Being Lesbian in Underprivileged India (2nd edn, Yoda Press 2021)
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PART A
individuals who are from socio-economically marginalised backgrounds are at an
even greater risk of being subject to harassment.
12. The LGBTQIA+ community also faces discrimination in the public space
because of the lack of accommodation in the public sphere for persons who do not
conform to the gender binary. All the services provided by the State including public
washrooms, security check points, and ticket counters at railway stations and bus
depots are segregated based on a strict gender binary. Transwomen have
recounted experiences of being asked to shift to the men’s queue in security check
points. 14 Although they are women and identify with the female gender, they are
forced to accept a third party’s assessment of their gender as being male. Just as
a cisgender woman may feel intensely uncomfortable at using facilities meant for
men, transgender women too may feel very uncomfortable. Over time,
misgendering a person can have deleterious effects on their mental health and
negatively impact their ability to function in the world.
13. Places of education and employment are also not spaces where gender
identity and sexual orientation may be expressed devoid of discriminatory attitudes.
The members of the queer community may be forced to quit their education or their
job if they face oppression in these spaces. This would mean that they do not have
equal opportunity. In professional environments, members of the queer community
may face various forms of discrimination which may range from being denied
opportunities to secure jobs to not being invited to office gatherings and to being
passed over for promotions. A human rights organization interviewed 3,619
14 Also see: e-Committee Supreme Court of India, Sensitisation Module for the Judiciary on LGBTQIA+ community
13
PART A
transgender persons out of which only 12% were employed, with half of them
earning less than Rs. 5,000 per month. 15 Contrary to popular perception, the
significant percentage of unemployment in the transgender community is not
because transgender persons do not wish to work or because they prefer to beg,
but because employers are unwilling to employ them due to their gender
nonconformity. In another study conducted by the National Human Rights
Commission (NHRC) it was revealed that seventy-five percent of transgender
persons in the National Capital Region and eighty-two percent of transgender
persons in Uttar Pradesh never attended school or dropped out before tenth grade.
Further, members of the transgender community face difficulty in obtaining proper
identification documents which prevents them from accessing even those
opportunities which are available to them.
14. The biological family is often the first site of violence and oppression for the
queer community. It begins with family members rejecting the gender identities of
their transgender children or consenting to “gender normalizing surgeries” for their
intersex children (that is, those who have reproductive or sexual anatomy that does
not fit into an exclusive male or female sex classification) without giving the child
an opportunity to choose for themselves 16. At a very young age, they face familial
rejection. Instead of being nurtured with love and affection, they face contempt
because of their identity which in turn makes them vulnerable and inexpressive.
The natal families of some homosexual persons force them to marry a person of
15 Shreya Raman, ‘Denied Visibility in Official Data, Millions of Transgender Indians Cant Access Benefits’ (India
Spend, 11 June 2021)
16 Also see Arunkumar v. Inspector General of Registration, AIR 2019 Mad 265
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PART A
the opposite sex once they come to know about their sexual orientation.17 A woman
also recounted that she was wary of communicating the truth about her sexual
orientation to her family because she was worried that they would stop her from
going to school. 18 Another woman recounted that after she disclosed her sexual
orientation to her family, her movements were constantly monitored and even if
she went away from home for an hour, her phone would be traced with the
assistance of the Station House Officer. 19 Families also consider a queer person’s
desire of gender expression to be a mental illness which requires cure. A person
from the queer community recounted being forced to undergo ‘conversion therapy’
where they were given electroconvulsive shocks. 20 Another queer person recounts
the harrowing experience that they underwent at a rehabilitation centre:
“It was only later that I realised that I had been shifted to
another rehabilitation centre [...]. Here, I was undressed and
checked by a female warden. Afterward, I went to sleep for
the night.
There was one bathroom in this rehabilitation centre, which
everyone used together. There was no door, and there was
no question of privacy. I have never been to jail in my life, but
I've heard that it's better than this.”
15. The transgender community is also discriminated against in other ways. The
members of the community are not treated in a dignified manner in the healthcare
sector for reasons which range from administrative formalities which are not
gender-inclusive to a lack of knowledge about gender-related diseases. 21 Similarly,
17 Shakthi Shalini, “The Unspoken: A qualitative research on natal family violence” 23
18 Ibid.
19 ibid
20 Ibid,110.
21 Lakshya Arora, ‘PM Bhujang, Muthusamy Sivakami, Understanding discrimination against LGBTQIA+ patients
in hospitals using human rights perspective: an exploratory qualitative study’ Sex Reprod Health Matters’ 2022
29(2) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9423841/.
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PART A
the community also faces discrimination in the housing sector. Studies have shown
that it is very difficult for members of the queer community to rent a house. 22 Some
members of the queer community recounted that they have shifted houses twice
in four years because of neighbours who assumed that they had parties and
caused disturbances. 23
16. Often, instruments of the State which are tasked with protecting human
rights, perpetuate violence. Police and prison officials exhibit violence towards the
queer community. Research conducted by the National Institute of Epidemiology
involving around 60,000 transgender participants revealed that the law
enforcement agencies are the largest perpetrators of violence against the
transgender community. 24 A trans-woman lodged in a prison housing two
thousand male inmates recounted the violence that she faced during her
imprisonment. She reported that the male prisoners sexually assaulted and
mentally harassed her. 25 Lesbian and gay couples often approach the police for
protection from family violence. However, instead of granting protection to the
couple, the police ‘hand over’ the couple to their families.26 In one such case, the
police colluded with the family despite court orders granting protection to a couple
from the queer community. The parents of a cis-woman (who was in a relationship
22 Sejal Singh and Laura E. Durso, ‘Widespread discrimination continues to shape LGBT people’s lifes in both
subtle and significant ways’ (American Progress , 2 May 2017)
https://www.americanprogress.org/article/widespread-discrimination-continues-shape-lgbt-peoples-lives-subtle-
significant-ways/
23 Bindisha Sarang, ‘Why its doubly difficult for gay renters to find homes’ , (First Post, November 13, 2013)
https://www.firstpost.com/living/why-its-doubly-difficult-for-gay-renters-to-find-homes-1224225.html
24 International Commission of Jurists, Unnatural Offences: Obstacles to Justice in India Based on Sexual
Orientation and Gender Identity (ICJ, 2017)
25 Sukanya Shantha, ‘Misgendering, sexual violence, and harassment: What it is like to be a transgender person
in an Indian prison’ (The wire, 11 Feb 2021) https://thewire.in/lgbtqia/transgender-prisoners-india
26 Centering Familial Violence in the Lives of Queer and Trans Persons in the Marriage Equality Debates, A report
on the findings from a closed door public hearing on April 1, 2023 organised by PUCL and National Network of LBI
Women and Transpersons.
16
PART A
with a trans man) filed a missing persons case, The couple already had already
filed an affidavit in court that they were in a live-in relationship. However, the police
‘tracked them down’.27 In some instances, the family’s complaint is not recorded
by the police. Instead, they try to force persons of the queer community to speak
to their family. 28 The violence and the discrimination that the queer community is
subjected to leads to them being closeted or feeling compelled to imitate the
expressive attitudes of heterosexual persons. 29
17. This Court in NALSA (supra) declared that the transgender community must
not be subsumed within the gender binary and must be treated as a “third gender”
in the eyes of the law. This Court also directed the Central and the State
governments to take steps to address the stigma and oppression faced by the
community and create public awareness about the community and their struggles.
Parliament enacted the Transgender Persons (Protection of Rights) Act 2019 30 to
protect the rights of the transgender community and provide welfare measures for
their betterment. The enactment aims to protect the transgender community from
discrimination and includes provisions for providing them with opportunities in the
educational and social sectors. However, in spite of the decision of this Court in
NALSA (supra) and the provisions of the Transgender Persons Act, members of
the transgender community continue to be denied equal citizenship. They face
immense physical and sexual violence. They are often forced to undergo sex-
reassignment surgeries before their rights as transgender persons are recognized,
27 ibid
28 ibid
29 Sejal Singh and Laura E. Durso (n 22)
30 “Transgender Persons Act”
17
PART B
and are frequently subjected to hate speech. Stereotypes about the community are
also reinforced in the media.
18. 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.
B. Submissions
19. Learned counsel appearing for the petitioners made the submissions
detailed below. Since this Court is a court of record, the submissions of each of the
counsel are set out.
20. Mr. Mukul Rohatgi, learned senior counsel, made the following submissions:
a. This Court’s existing jurisprudence on LGBTQIA+ rights declares that
LGBTQIA+ persons are entitled to dignity, equality, and privacy, which
encompasses the fundamental right of LGBTQIA+ persons to marry a person
18
PART B
of their choice. Accordingly, statutory recognition of such fundamental rights
of LGBTQIA+ persons is merely a consequence of this Court’s
jurisprudence 31;
b. Articles 19 and 21 of the Constitution guarantee all persons the right to marry
a person of their choice, including LGBTQIA+ persons;
c. The Special Marriage Act (SMA) violates the right to dignity and decisional
autonomy of LGBTQIA+ persons and therefore violates Article 21 32;
d. Excluding LGBTQIA+ persons from the SMA discriminates against them on
the basis of their sexual orientation and the sex of their partner. This violates
Article 15 of the Constitution;
e. The SMA is violative of Article 14 of the Constitution because:
i. It denies LGBTQIA+ persons equal protection of the laws. Non-
recognition of same-sex and gender-non conforming marriage causes
prejudice to LGBTQIA+ persons and denies them rights under social
welfare and beneficial legislations;
ii. It is manifestly arbitrary to exclude LGBTQIA+ persons from the SMA.
There is no fair or reasonable justification to exclude LGBTQIA+
couples from the institution of marriage;
31 Reliance was placed on K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 [9-Judge Bench], Navtej Singh
Johar v. Union of India (2018) 10 SCC 1, National Legal Services Authority v. Union of India (2014) 5 SCC
438, and Deepika Singh v. Central Administrative Tribunal 2022 SCC OnLine SC 1088
32 Reliance was placed on Shakti Vahini v. Union of India (2018) 7 SCC 192
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PART B
iii. There is no constitutionally valid, intelligible differentia between
LGBTQIA+ and non-LGBTQIA+ persons. The classification in the
present case is based only on the sexual orientation and gender
identity of the parties to a marriage, which is constitutionally
impermissible. Further, there is no rational nexus with the object
sought to be achieved by the SMA. The object of the SMA is to provide
a civil form of marriage for couples who cannot or choose not to marry
under their personal law. The exclusion of LGBTQ couples from the
SMA has no rational nexus with this object;
f. There is no 'legitimate state interest' promoted or safeguarded by denying
LGBTQ+ individuals the fundamental right of marriage;
g. Recognizing the right of LGBTQIA+ couples to marry upholds constitutional
morality. Constitutional morality urges the organs of the state, including the
judiciary, to preserve the heterogeneous nature of our society and encourage
it to be pluralistic and inclusive;
h. Every person is entitled to marry someone of their choice. Queer people are
equally entitled to the exercise of this right 33.;
i. Denying LGBTQ+ individuals the right to marry inflicts personal harm on them
and also inflicts a significant economic cost on the country;
33 Reliance was placed on Shafin Jahan v. Asokan K.M. (2018) 16 SCC 368, Shakti Vahini (supra), Laxmibai
Chandaragi B. v. State of Karnataka (2021) 3 SCC 360, Deepika Singh (supra)
20
PART B
j. Denial of the right to marry amounts to a deprivation of the entitlement to full
citizenship as well as a denial of the right to intimacy;
k. The Constitution is a living document and ought to adapt to changing social
realities. Notions of marriage equality are not necessarily opposed to social
morality.;
l. If a statute appears to violate the Constitution, then this Court may either
declare it unconstitutional, or read it expansively to save its constitutionality.
Matrimonial as well as other statutes can be read in a gender-neutral manner
to include LGBTQIA+ couples within their ambit;
m. There is growing international consensus (including judicial consensus) which
recognizes same-sex and gender non-conforming marriages, and this is in
line with India’s international obligations;
n. Article 32 of the Constitution vests in persons or citizens a fundamental right
to approach this Court for the enforcement of the rights guaranteed in Part III
of the Constitution. It is therefore incorrect to argue that queer people must
wait for Parliament to enact a law granting marriage equality;
o. Consequential reliefs must necessarily follow a declaration that the right to
marry is vested equally in all persons including LGBTQIA+ persons;
p. The SMA ought to be read in a gender-neutral manner. Gendered terms such
as “husband” and “wife” ought to be read as “spouse.” The language used in
the SMA facilitates a gender neutral interpretation. Section 4 of the SMA is
21
PART B
with reference to “any two persons,” Section 4(1)(a) refers to a “spouse” and
Section 4(1)(b) refers to a “party”;
q. The age that must be attained before a person is eligible to marry under the
SMA ought to be twenty-one years for all persons; and
r. Transgender persons may fall into the categories of either “man” or “woman”
in the SMA, depending on the gender they identify with.
21. Dr. Abhishek Manu Singhvi, learned senior counsel, made the following
submissions:
a. The SMA is unconstitutional because it discriminates on the grounds of sexual
orientation by preventing same-sex couples from solemnizing their marriages.
Article 15(1) of the Constitution prohibits discrimination on the grounds of sex,
which subsumes sexual orientation. The requirement in the SMA that a couple
should consist of a man and a woman is one which is based on ascriptive
characteristics (attributes that are pre-determined or designated by society or
other external norms) and is an exclusion based on a marker of identity;
b. Marriage is not simply a benefit or privilege. Rather, it forms the very basis of
a couple’s ability to fully participate in society. Marriage is a source of social
validation, dignity, self-respect, fulfilment, security (financial and otherwise),
and other legal and civil benefits including in the domain of tax, inheritance,
adoption, etc.;
c. The exclusion of same-sex couples from the SMA is violative of Article 14 of
the Constitution. While there is an intelligible differentia for the classification
22
PART B
in that the sexual orientation of heterosexual and homosexual persons is
different, there is no rational nexus with any legitimate state purpose. A
legislative purpose cannot itself be discriminatory or unconstitutional;
d. The exclusion of same-sex couples from the SMA is violative of Article 19 of
the Constitution. The act of entering into a marital relationship is protected
under Article 19(1)(a) of the Constitution, and is a socially valuable form of
expression. The restriction on the right of queer persons to marry is not a
reasonable restriction under Article 19(2)34;
e. The exclusion of same-sex couples from the SMA is violative of their right to
dignity and is therefore violative of Article 21 of the Constitution. The exclusion
of same-sex couples from the institution of marriage is being used to send a
public message about their worth as unequal moral members of society and
is inter alia akin to caste-based restrictions on temple entry and the refusal to
accommodate disability in public examinations;
f. The SMA authorizes the solemnisation of same-sex marriages, when
interpreted consistent with the Constitution. It can be read down in the
following manner to include the solemnization of marriages between non-
heterosexual persons:
i. The word "man" in Section 2(b) includes "any person", and that
correspondingly, the word "woman" includes "any person";
34 Reliance was placed on Union of India v. Naveen Jindal (2004) 2 SCC 510
23
PART B
ii. The words "man" and "woman" include trans-men and trans- women,
intersex and non-binary individuals as the case may be 35;
iii. Section 4(c) enacts only an age-based exclusion for persons
otherwise eligible to marry under the provisions of Section 4, and shall
not be construed to impose any disabilities based on gender, sexual
orientation, or sexual identity of the parties. For same sex couples in
particular, Section 4(c) can be read as a single age-restriction, be it
eighteen or twenty-one. In the alternative, Section 4(c) may be read
as prescribing the minimum age as eighteen for both parties in the
case of a lesbian relationship and twenty-one for both parties in the
case of a gay relationship. For non-binary and inter-sex persons, the
SMA may be read as imposing no restriction beyond that imposed by
other laws which stipulate the age at which persons become capable
of binding themselves under law i.e., eighteen years. In the
alternative, this Court may lay down guidelines as an interim measure
while leaving it open to Parliament to fill the vacuum in due course of
time;
iv. The reference to "widow" and "widower" in Schedules II and III must
be read as "widow or widower" and "widower or widow," as the case
may be, and shall not be construed to impose any disabilities based
on gender, sexual orientation, or sexual identity of the parties;
35 Reliance was placed on National Legal Services Authority (supra)
24
PART B
v. References to “bride” and “bridegroom” in Schedules III and IV must
be read as “bride or bridegroom”, as the case may be, and shall not
be construed to impose any disabilities based on gender, sexual
orientation, or sexual identity of the parties.
g. The Foreign Marriage Act 1969 can similarly be read down;
h. The relief sought by the petitioners is workable;
i. In reading down the SMA and the FMA to achieve a constitutionally compliant
interpretation, neither the text of the statute nor the intention of Parliament act
as a limitation. Only the underlying thrust of the legislation and the institutional
capacity of this Court are relevant. The underlying thrust of the SMA is that it
was designed to facilitate marriages lying outside the pale of social
acceptability. Reliance was placed on Ghaidan v. Godin-Mendoza [2004]
UKHL 30;
j. In the alternative, the principle of updating construction ought to be applied to
the SMA. Courts may expand the existing words of a statute to further the
march of social norms and contemporary realities;
k. Some laws (such as the Protection of Women Against Domestic Violence Act
2005, the Dowry Prohibition Act 1961, provisions pertaining to cruelty in the
Indian Penal Code 1860 36) were enacted to address structural imbalances of
power between men and women in a heteronormative setting. These
provisions of law do not impact whether same-sex couples have a right to
36 “IPC”
25
PART B
marry. These provisions are beyond the scope of the petitions and need not be
interpreted in favour of either spouse in a non-heterosexual marriage;
l. There is no timeless and immutable conception of marriage. The SMA itself
was enacted contrary to the cultural and social understanding of marriage
which prevailed at the time. Further, the SMA is a secular and areligious law
which was meant to serve as an alternative for those who could not or did not
want to solemnize their marriages under the applicable personal law, which is
rooted in religion. The conditions for the solemnization of a marriage under the
SMA need not, therefore, conform to the cultural, social, or religious
understandings of marriage;
m. The principles of equality and non-discrimination cannot be trumped by societal
values. These principles, by definition, require a challenge to majoritarian
social norms;
n. This Court is not being asked to act as a substitute for the legislature or to alter
the “concept of marriage.” Rather, this Court is being asked to find that the
exclusion of a group of people from the SMA solely by virtue of their ascriptive
characteristics is unconstitutional. A constitutionally compliant reading of the
SMA to allow for marriage equality is within the bounds of legitimate statutory
interpretation and is not judicial legislation; and
o. Civil unions are not an equal alternative to the legal and social institution of
marriage. Relegating non-heterosexual relationships to civil unions would send
the queer community a clear message of subordination – that their
26
PART B
relationships are inferior to relationships that comply with the entrenched
heteronormative social order.
22. 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 persons37.
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
37 Reliance was placed on Shakti Vahini (supra)
27
PART B
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.
23. Mr. K V Vishwanathan, learned senior counsel, submitted that:
a. Under Article 21 of the Constitution, all persons have a fundamental right to
choose a partner;
b. International covenants to which India is a signatory including the Universal
Declaration of Human Rights 38 and the International Covenant on Economic,
Social and Cultural Rights 39 enjoin a duty upon the state to not interfere with
the right of a person to marry and have a family in terms of their own choice
38 “UDHR”
39 “ICESCR”
28
PART B
as well as to protect the familial rights of all persons without discrimination on
the basis of inter alia sexuality, race, and religion;
c. Statutes regulating marriage in India must be read as inclusive of all gender
identities and sexualities in view of the pronouncements of this Hon’ble Court
in National Legal Services Authority (supra) and Navtej (supra). Such a
reading is necessary to ensure that these statutes pass muster on the
touchstone of Part III of the Constitution;
d. Courts across the country as well as state policies and welfare schemes have
recognised and accorded equal status to unions between LGBTQ persons. A
necessary corollary of the right to self-identify gender is to be able to express
personal preference in terms of choice of partner, and, therefore a marriage
entered into by a transgender person must be fully recognised by the State40;
e. This Court has previously issued guidelines to protect citizens against
discrimination in cases where there existed a lacuna in the law41.;
f. The freedom to choose a partner in marriage would be covered under Article
19(1)(a) as an expression, under Article 19(1)(c) as an association or union
and Article 19(1)(e), as an exercise of the right to reside and settle in any part
of the territory of India 42;
40 Reliance was placed on Arunkumar v. Inspector General of Registration AIR 2019 Mad 265, Sushma v.
Commissioner of Police, W.P. No. 7248 of 2021, Madras High Court, Mansur Rahman v. Superintendent of
Police 2018 SCC OnLine Mad 3250, Chinmayee Jena v. State of Orissa 2020 SCC OnLine Ori 602, Latha v.
Commissioner of 2021 SCC OnLine Mad 7495, Veera Yadav v. The Chief Secretary, Government of Bihar,
CW No. 5627 of 2020, Patna High Court, and Vithal Manik Khatri v. Sagar Sanjay Kamble, Crl. W.P. No. 4037
of 2021, Bombay High Court
41 Reliance was placed on Vishaka v. State of Rajasthan (1997) 6 SCC 241, D.K Basu v. Union of India (1997)
1 SCC 416
42 Reference was made to Saroj Rani v. Sudarshan Kumar Chadha (1984) 4 SCC 90
29
PART B
g. Excluding transgender persons from matrimonial statutes fails the reasonable
classification test under Article 14;
h. Transgender persons have a right against discrimination under Articles 15
and 16;
i. The right of transgender persons to marry is enjoined by the Transgender
Persons Act. The classification sought to be made by the Union of India
between “biological” and transgender persons is untenable;
j. Procreation is not the sole purpose of marriage. Marriage is not merely the
meeting and mating of two individuals but much more - it is the union of two
souls;
k. If the contention of the Union of India that ‘male’ and ‘female’ as provided in
statutes are to be construed to refer to cisgender males and females, it would
lead to absurd and unjust outcomes in implementation of several laws. For
instance, the Hindu Succession Act 1956 43 defines an ‘heir’ as any person
‘male or female’ entitled to succeed to the property of an intestate under said
Act. If the Union of India’s argument is taken to be correct, it would lead to a
situation where a transgender heir of a person who has died intestate would
not be able to inherit the property, even if they happen to be the sole heir;
l. The National Commission for Protection of Child Rights (NCPCR) has made
unscientific claims on the effect of puberty blocker / sex-transition therapy on
children. They are in complete disregard to the internationally accepted
43 “Hindu Succession Act”
30
PART B
guidelines issued by World Profession Association for Transgender Health, 44
which are also referenced in the Transgender Persons Act; and
m. The petitioners' constitutional rights cannot be denied based on an argument
that it would offend the "will of the people." Constitutional morality cannot and
ought not to be replaced by social morality.
24. Ms. Geetha Luthra, learned senior counsel, made the following
submissions:
a. The FMA is applicable to a couple if at least one of them is an Indian citizen.
The FMA travels with the citizen to a foreign jurisdiction to extend its
protection by recognizing the citizen’s marriage contracted under foreign law,
or by allowing a citizen to solemnize their marriage under Indian law even
when they are abroad. In terms of Section 17 of the FMA, a marriage must be
valid in terms of foreign law and consistent with international law;
b. All citizens including LGBTQIA+ citizens are entitled to all rights available to
Indian citizens, even if they are abroad. Articles 19 and 21 of the Constitution
guarantee all persons the right to marry a person of their choice, including
LGBTQIA+ citizens. The FMA violates the right to dignity and decisional
autonomy of LGBTQIA+ persons and is discriminatory. Reliance was placed
on National Coalition for Gay and Lesbian Equality v. Minister of Home
Affairs [2000] 4 LRC 292;
44 “WPATH”
31
PART B
c. The object of the FMA in adopting the scheme of the SMA is to provide a
uniform, civil and secular marriage law for a couple, either of whom is an
Indian citizen. However, by recognizing marriages only between opposite sex
couples, the effect of the law is to deny same-sex and gender non-conforming
couples the right to marry a person of their choice, solely on grounds of their
sexual orientation and gender identity. This is violative of Article 15 of the
Constitution;
d. The SMA and the FMA are violative of Article 14 of the Constitution because
they deny LGBTQIA+ persons the equal protection of laws, are manifestly
arbitrary, and fail the rational nexus test. There is no intelligible differentia
between LGBTQIA+ and non-LGBTQIA+ couples. The object of the FMA is
to extend the protection of the Indian Constitution and its laws to a citizen
abroad regardless of who they choose to marry and under whichever law they
choose to do so, to provide for maximum international validity of a marriage,
and in adopting the framework of the SMA, to provide for a uniform, civil and
secular law to govern foreign marriages. The exclusion of same-sex and
gender non-conforming couples from the FMA has no rational nexus with
these objects;
e. The FMA is pari materia to the SMA. They must be interpreted similarly with
regard to same-sex and gender non-conforming marriages;
f. Recognition of marriage of same-sex and gender non-conforming couples
under the FMA furthers the comity of nations; and
32
PART B
g. The grant of reliefs does not render the provisions of the FMA or other statutes
employing gendered terminology unworkable.
25. Mr. Anand Grover, learned senior counsel, made the following submissions:
a. Marriage remains fundamental to the functioning of the society, and to avail
important schemes under the modern nation - state, such as joint tax benefits
and rights of surrogacy;
b. The FMA must be interpreted liberally to advance the cause of society at
large. It must not be interpreted to cause hardship;
c. The failure of the SMA to recognize same-sex marriages violates Articles 14
and 15 of the Constitution because it fails the reasonable classification test,
is manifestly arbitrary, and discriminates based on gender identity and sexual
orientation;
d. The failure of the SMA to recognize same-sex marriages violates Article
19(1)(a) of the Constitution because sexuality, gender expression, and
marriage are forms of expression;
e. The right to intimate associations is protected by Article 19(1)(c) of the
Constitution. Reliance was placed on Griswold v. Connecticut 381 US 479
(1965);
f. Same-sex marriages or gender non-conforming marriages form a part of
Indian tradition and culture. Reliance was placed on National Legal Services
Authority (supra);
33
PART B
g. Queerness or homosexuality is not an urban, elite conception or expression.
Numerous queer or homosexual couples from villages and towns in India
have expressed their sexuality, chosen their partner, and entered into the
institution of marriage; and
h. There is no traditional bar on marriage between non-heterosexual persons.
Excerpts from various scriptures support this proposition.
26. Ms. Jayna Kothari, learned senior counsel, made the following submissions:
a. The SMA ought to be read to include the words “spouse” and “person” so as
to include transgender persons within its ambit. Failure to do so amounts to a
violation of the right of transgender persons to equality and to equal protection
of the laws under Article 14 of the Constitution;
b. The SMA discriminates on the basis of sex, gender identity, and sexual
orientation, thereby violating Article 15 of the Constitution;
c. The denial of the right to marry to persons based on their gender identity is a
denial of the right to dignity, personal autonomy, and liberty under Article 21
of the Constitution;
d. Inter-sex persons have the same rights as all other persons in India, including
the right to marry; and
e. The right to a family is available under Article 21, and this right includes the
right to marry. The SMA is violative of the right of transgender persons to have
34
PART B
a family. Reliance was placed on Oliari v. Italy Applications nos. 18766/11
and 36030/11.
27. Dr Menaka Guruswamy, learned senior counsel, made the following
submissions:
a. The Indian Parliament is a creature of the Constitution and does not enjoy
unfettered sovereignty. The supremacy of the Constitution is protected by this
Court by interpreting laws in consonance with constitutional values;
b. This Court’s power of judicial review over legislative action is part of the basic
structure of the Constitution;
c. Constitutional courts are empowered to review statutory law to ensure its
conformity with constitutional values. The courts do not need to wait for the
legislature to enact/amend law to recognize same-sex marriage;
d. The provisions of SMA, insofar as they do not recognize same-sex marriages,
are unconstitutional as being violative of Articles 14, 15, 19, 21 and 25 of the
Constitution. Hence, to save it from the vice of unconstitutionality, the SMA
must be read up to recognise same-sex marriages;
e. Recognition of same-sex marriages under the SMA is consistent with the
evolving conception of the institution of marriage;
f. Same-sex marriage is a time honoured tradition in the Indian society;
g. The gendered references in the SMA are capable of being read to recognize
same-sex marriages;
35
PART B
h. The State has no legitimate interest in restricting the institution of marriage to
heterosexual couples alone; and
i. The codification of Hindu personal laws commenced in 1941 with the colonial
Government appointing the Hindu Law Committee, which prepared the first
draft of the Hindu Code Bill. There was vociferous opposition to the Hindu
Code Bill, which was later enacted into four distinct legislations - the Hindu
Marriage Act 1955, 45 the Hindu Succession Act, 1956, the Hindu Minority and
Guardianship Act 1956, and the Hindu Adoptions and Maintenance Act 1956.
Inter-caste marriages, sagotra marriages, the prescription of monogamy, and
the introduction of divorce were met with great opposition. Despite vehement
opposition, these reforms have stood the test of time and society has
prospered overall as a result. Today, the objections raised on behalf of the
Union of India opposing the recognition of same-sex marriage are akin to the
opposition to the Hindu Code Bill.
28. Mr. Saurabh Kirpal, learned senior counsel, submitted that:
a. Depriving LGBTQ+ individuals of the right to marry violates Articles 14, 15,
19(1)(a) and 21 of the Constitution;
b. The right to marry a person of one's choice is itself a Fundamental Right under
the Constitution;
45 “HMA”
36
PART B
c. The SMA is unconstitutional if it is interpreted to exclude access to LGBTQ
individuals from its ambit;
d. The intent of Parliament when it enacted the SMA is not relevant. The doctrine
of reading in does not aim to discover the intention of Parliament. The
jurisprudential basis of the doctrine is that courts read something in to save a
statute from the vice of unconstitutionality;
e. Having found a right to marry, this Court cannot hold that there is no remedy
or a real possibility for the exercise of that right; and
f. By virtue of Article 13, the Constitution trumps a statute which violates the
Constitution. Analysis under Article 13 does not extend to whether or not a
statute or a system of law is workable after it is read up or after certain words
or phrases are read in to save it from being unconstitutional. It cannot be that
a complex statute can defeat a fundamental right by virtue of its complexity.
29. Ms. Vrinda Grover, learned senior counsel, made the following submissions:
a. Interference, opposition and violence from natal families, irrespective of
marital status, violates the fundamental right to life and personal Liberty under
Article 21 of the Constitution;
b. Non-recognition of ‘atypical families’ or ‘chosen families’ beyond constraints
of marriage, blood or adoption violates Articles 14, 15, 19 and 21;
37
PART B
c. Non-recognition of marriage between two consenting adults on the basis of
gender identity or sexual orientation under the SMA violates Articles 14, 15,
19 and 21;
d. Constitutional courts sometimes accord undue deference to the natal family.
This ignores the coercion and violence that queer and transgender persons
face within their homes. Reference was made to Devu G v. State of Kerala,
SLP (Criminal) No. 5027/2023, Order dated 6 February 2023;
e. This Court ought to issue directions to all state governments to instruct police
officers to compulsorily follow the mandate of Sections 41 and 41-A of the
Code of Criminal Procedure 197346 when responding to complaints involving
queer and transgender adults who voluntarily leave natal homes;
f. Issues of ‘workability’ in statutory provisions do not preclude this Court from
protecting rights under Part III of the Constitution.
30. Ms. Karuna Nundy, learned counsel, submitted that:
a. A spouse of foreign origin of an Indian Citizen or Overseas Citizen of India 47
cardholder is entitled to apply for registration as an OCI under Section
7A(1)(d) of the Citizenship Act 1955. 48 Section 7A(1)(d) is gender, sex and
sexuality neutral, as distinct from the FMA and SMA. The absence of any
conditions qua gender/ sex/sexuality of the parties is a casus omissus in the
46 “CrPC”
47 “OCI”
48 “Citizenship Act”
38
PART B
statute. This Court cannot supply a casus omissus into a statute by judicial
interpretation, except in circumstances of clear necessity;
b. The recognition of a foreign marriage between two non-citizens is a mere
ministerial Act. Only the substantive law of the foreign jurisdiction is relevant;
c. It would be manifestly arbitrary and contrary to Article 14, for the law to accord
a larger ambit for registration of marriages to an OCI than to a citizen of the
country married in a foreign jurisdiction, and to the extent of the inconsistency
a harmonious construction of the FMA with the Citizenship Act is required;
d. A denial of the right to marry for queer persons is violative of Articles 14, 15,
19, and 21 of the Constitution; and
e. Rule 5 of the Transgender Persons (Protection of Rights) Rules 2020
recognises marriage of transgender persons because Form 2 contains the
word “spouse”.
31. Ms. Anitha Shenoy, learned senior counsel, submitted that:
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 from solemnization or registration, as incorporated
in Section 4(c) and 17(2) and other provisions of the FMA is ultra-vires the
Constitution;
39
PART B
b. The denial of recognition of the petitioners’ marriage is inconsistent with the
very object of the FMA not to invalidate marriages duly solemnized under
foreign law by Indian citizens;
c. The requirement of proof of a ‘marital relationship’ by a ‘married couple’ for
the purpose of joint adoption under Regulations 5(2)(a) and 5(3) is beyond
the remit of Section 57 of the JJ Act that extends joint adoption to relationships
that are ‘marriage like’ including marriages between same-sex couples
solemnized overseas;
d. Regulations 5(2)(a) and 5(3) of the Adoption Regulations 202249 are ultra
vires the Juvenile Justice (Care and Protection of Children) Act 2015.50 They
also violate:
i. The principle of equality and non-discrimination on the basis of sexual
orientation under Articles 14 and 15;
ii. The right to adoption and motherhood protected under Article 21; and
iii. The right of a child to be adopted recognised under the Hague
Convention on Protection of Children and Co-operation in respect of
Inter-country Adoption 1980 and the Convention on the Rights of
Children 1989.
49 “Adoption Regulations”
50 “JJ Act”
40
PART B
32. Ms. Arundhati Katju, learned counsel, made the following submissions:
a. Article 21 protects the right to found a family and the right to a meaningful
family life for all persons including LGBTQ persons. The law defines “family”
and “household” broadly and is not limited to a “biological” man and woman
and their children. Surrogacy and adoption are available only to married
couples, thus, denying LGBTQ couples the right to found a family;
b. A child’s right to a meaningful family life under Article 21, and its best interest,
is protected by recognizing its parents’ relationship through marriage;
c. Denying LGBTQ couples the right to marry violates Article 14 qua them and
their children;
d. The SMA should be read expansively to save it from the vice of
unconstitutionality and in the alternative, it should be struck down;
e. Any interpretative difficulties which arise because of the exercise of reading-
in must be decided on a case-by-case basis by the courts before which such
issues arise; and
f. A declaration of the rights of queer people by this Court will not preclude any
debates or discussions about queerness either in Parliament or in society.
41
PART B
33. Ms. Amritananda Chakravorty, learned counsel, made the following
submissions:
a. The Office Memorandum issued by CARA on 16 June 2022 51 is
unconstitutional because they prevent same-sex couples and gender non-
conforming couples from availing of joint adoption; and
b. The requirements prescribed in the CARA Circular travel beyond the remit of
the JJ Act. Section 2(49) of the JJ Act defines the term “prospective adoptive
parents” to mean “a person or persons eligible to adopt a child as per the
provisions of section 57.” Section 2(49) does not require the prospective
adoptive parents to be heterosexual. Further, Section 57 does not specify
marital status as a relevant factor to be considered while determining the
eligibility of prospective adoptive parents.
34. Mr. Raghav Awasthi, learned counsel, sought to make submissions
regarding the Hindu Marriage Act. This Court declined to hear arguments on this
issue in the present proceedings.
35. Mr. Shivam Singh, learned counsel, made the following submissions:
a. It is unconstitutional for the state to discriminate against persons
because of their innate characteristics;
b. Upholding the heterosexual notion of marriage as the only
constitutionally and legally sanctioned notion of marriage will serve to
51 CARAICA013/1/2022Administration; “CARA Circular”
42
PART B
perpetuate gender-based stereotypes proscribed by the Constitution
and is therefore violative of Article 15; and
c. Resorting to the provisions of the General Clauses Act 1897, Section
4(c) of the SMA (which otherwise appears to be unconstitutional) can
be read down such that the singular “male” and “female” includes the
plural as well.
36. Manu Srinath, learned counsel, made the following submissions:
a. Persons whose fundamental rights are violated are entitled to seek
judicial review of the violating act;
b. It is permissible for judicial review to result in an increase in the size of
the intended pool of beneficiaries of a legislation. Such an exercise will
not amount to legislation by courts; and
c. Judicial review is a tool to achieve social justice. It is also a tool by
which constitutional aspirations and ideals are achieved.
37. Jaideep Gupta, learned counsel, made the following submissions:
a. If recognition is accorded to marriage by queer persons, they will be
protected from so-called “conversion therapies” which attempt to
“convert” the sexual orientation of queer people into a heterosexual
orientation as well as forced marriages;
b. Queer marriages do not fall within the degrees of prohibited
relationships; and
43
PART B
c. The classification on the basis of age in the SMA ought to be declared
unconstitutional insofar as it mandates a different minimum age
requirement for men and women. This Court ought to declare twenty-
one years as the ideal age for all marriages. The Prohibition of Child
Marriage (Amendment) Bill 2021, which seeks to raise the legally
permissible age of girls to marry from eighteen years to twenty-one
years is currently pending in Parliament.
38. Thulasi Raj, learned counsel, submitted that:
a. The exclusion of the LGBT community from the institution of marriage
is “demeaning” as defined by Deborah Hellman; and
b. Prejudicial notions about sexuality inform the SMA although its
provisions may not expressly contain words which indicate such
prejudices.
39. Tanushree Bhalla, learned counsel, submitted that:
a. The word “man” in the SMA ought to be read as meaning a cisgender
man, a transgender man, and any person who assumes a role in the
marriage that the statute or society or the institution of marriage confers
on men. The word “woman” must be interpreted in a similar fashion;
b. Section 4(c) of the SMA excludes intersex persons; and
c. A minimum age at which persons of the “third gender” may marry may
be read in, in Section 4(c) of the SMA.
44
PART B
40. In addition to the above submissions, some senior counsel and counsel
sought to address this Court on the ‘notice and objections regime’ in the SMA (i.e.,
Sections 5 to 9 of the SMA which stipulate a set of procedural preconditions to the
solemnization of marriages under the SMA). This Court has not heard arguments
on this issue in the present proceedings.
41. Mr. R. Venkataramani, learned Attorney General of India appearing for the
Union of India, made the following submissions:
a. This Court has already issued constitutional declarations on the right to form
a family, and the right to marry of non-heterosexual persons in Navtej (supra).
The issue in this batch of petitions relates to fitting the constitutional
declaration into relevant laws;
b. The SMA is a species of the general marriage laws. Marriage is conceived to
be a union between heterosexuals across all laws on marriage and
procreation is an essential aspect of marriage;
c. At the time when the SMA was enacted, an alternative conception of a union
of persons (other than heterosexuals) did not exist. The SMA is intended to
regulate marriage between heterosexuals irrespective of caste and religion.
Thus, the omission of non-heterosexual unions from the purview of the
enactment would not render the enactment unconstitutional because of
under-inclusiveness. The SMA will be underinclusive only when a class of
heterosexuals is excluded by the statute;
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PART B
d. There would be no internal cohesion in the SMA if Section 4 is read in a
gender-neutral manner. Such an interpretation would render the
implementation of Sections 19 to 21A which link the SMA with other personal
and non-personal laws difficult;
e. Courts can use the interpretative tool of reading-in only when the stated
purpose of the law is not achieved. Since the purpose of SMA is to regulate
heterosexual marriages, this Court cannot read words into the enactment to
expand its purview beyond what was originally conceptualized;
f. It is up to Parliament to enact a special code regulating non-heterosexual
unions and the specific issues that such unions would face during and after
the partnership, after comprehensively engaging with all stakeholders;
g. The course adopted by this Court in Vishaka (supra) cannot be replicated for
two reasons: one, there is no legislative vacuum in the instant case, and
second, the non-inclusion of all possible kinds of unions cannot be construed
as a constitutional omission;
h. Courts cannot issue directions granting legal recognition to non-heterosexual
marriages because it would require the redesigning of several enactments
and rules. Marriage rights must be given only through the parliamentary
process after wide consultation; and
i. A declaration by this Court granting legal recognition to non-heterosexual
marriages accompanied with a scheme of rights would be anathema to
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PART B
separation of powers. This Court must not venture into the realm of policy
making and law making.
42. Mr. Tushar Mehta, learned Solicitor General appearing for the Union of
India, made the following submissions:
a. The institution of marriage occupies a central role in the sustenance and
progression of humankind. The prominent components of a marriage are
companionship, sexual intimacy, and most importantly, procreation. Marriage
(from an individual perspective) serves the purpose of sustaining an
individual’s gene pool. From a societal perspective, marriage contributes
towards the proliferation of future generations for the sustenance of
humankind;
b. The Constitution does not recognize a right to marry. An expression of a
person’s sexuality is protected under Article 19(1)(a) of the Constitution.
However, marriage cannot be traced to the right to freedom of expression or
the right to form unions under Article 19(1)(c);
c. This Court has not previously recognized the right to marry under the
Constitution. The observations of this Court in Shafin Jahan (supra) and
Shakti Vahini (supra) that the petitioners’ right to marry has been violated
must be read in the specific context of these judgments. In these cases, the
right to marry which is conferred by the legislature to inter-caste and inter-
religious couples was violated by State and non-State actors;
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PART B
d. Marriage is a creation of statutes. The State by virtue of Entry 5 of List III of
the Seventh Schedule has the power to regulate the institution of marriage.
In exercise of this power, the legislature has prescribed various conditions
which must be fulfilled before legal recognition can be given to a union. These
conditions inter alia include the minimum age to be able to consent to a
marriage, the prohibition of bigamy, and the bar against marrying within the
degrees of prohibited relationship;
e. The State is not under an obligation to grant legal recognition to every type of
relationship. The State only recognizes relationships when there exists a
legitimate state interest. The State has a legitimate State interest in legally
recognizing heterosexual relationships for the sustenance of society;
f. After the decriminalization of homosexuality in Navtej (supra), members of
the LGBTQIA+ community have the freedom and autonomy to choose their
partners without restraints on gender and sexuality. However, the
decriminalization of the sexual offence does not cast an obligation on the
State to grant legal recognition to such relationships or unions. Marriage is a
legal privilege. It is conditional upon statutory or societal conditions. The right
to choose a partner does not necessarily imply that there is a right to marry a
partner of choice;
g. The Courts do not have the power to decide if legal recognition can be granted
to a union of non-heterosexual individuals. This is an issue which must
necessarily be decided by the legislature, being the elected representatives
of the citizens;
48
PART B
h. It would become impossible to deny legal recognition to practices such as
incest or polygamy if non-heterosexual couples are granted the right to marry;
i. Marriage is a public institution. It falls in the outer-most zone of privacy and is
thus, susceptible to the highest degree of State regulation. This Court in
Navtej (supra) only granted protection to the intimate and intermediate zone
of privacy of non-heterosexual couples;
j. Both the father and the mother have a significant and unique role in the
upbringing of children. In non-heterosexual unions, the child born out of
surrogacy or artificial reproductive technology or adopted by the couple would
feel the absence of either a father or a mother. The State does not grant legal
recognition to homosexual unions in the form of marriage to protect the
interest of the children. This is a legitimate State interest. The petitioners have
not submitted sufficient data to back their claim that the interest of a child
brought up by a non-heterosexual couple is protected;
k. Granting legal recognition to non-heterosexual unions would dilute
heterosexual marriages. For example, in Netherlands, more heterosexual
couples have opted for domestic partnerships and cohabitation after legal
recognition was granted to non-heterosexual unions. Non-heterosexual
unions are not granted legal recognition to protect the institution of marriage;
l. The impugned provisions of the SMA are constitutional because:
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PART B
i. The legislative debates during the introduction of the SMA indicate that
Parliament made a conscious decision to exclude non-heterosexual
unions from the ambit of the SMA;
ii. The object of the SMA is to grant (and regulate) legal recognition to
inter-faith and inter-caste unions of heterosexual couples. The
provisions of the SMA have a reasonable nexus to this object;
iii. There is an intelligible differentia in classifying unions into heterosexual
and non-heterosexual partnerships because heterosexual couples
sustain a society through precreation. In fact, the Transgender Persons
Act also classifies persons into homosexuals and heterosexuals and
grants substantive rights to the members of the LGBTQIA+ community
in furtherance of the mandate of substantive equality. The Transgender
Persons Act recognizes the autonomy of the members of the LGBTQI+
community to choose a partner of their choice;
iv. The constitutionality of a statute cannot be challenged on the ground
of under-inclusion;
v. An emerging body of evidence indicates that homosexuality may be an
acquired characteristic and not an innate characteristic. Children who
have been exposed to homosexual experiences are more likely to
identify as a homosexual on attaining adulthood. Thus, this Court must
not approach this issue from a “linear reductionist perspective.”
Further, the argument of the petitioners that the SMA is unconstitutional
50
PART B
because it is excludes a class based on innate characteristics is
erroneous;
vi. The SMA would become unworkable if it is read in a gender-neutral
manner. It would also amount to this Court re-drafting a large number
of provisions:
A. Section 2(b) read with the First Schedule prescribes distinctive
degrees of prohibited relationships for the bride and the groom;
B. According to Section 4(c), the male must have completed twenty-
one years of age and the female must have completed eighteen
years of age at the time of marriage. Reading the phrase ‘spouse’
in place of ‘male’ and ‘female’ would render the distinctive
minimum age requirement for marriage based on gender otiose;
C. The form of the statutory oath which the parties are required to
take for the solemnization of their marriage expressly uses the
phrases ‘wife’ and ‘husband’;
D. According to Section 21, the rules of succession provided in the
Indian Succession Act 192552 govern the succession of property
of any person who is married under the SMA. The ISA prescribes
different rules and procedures for succession based on gender.
52 “ISA”
51
PART B
Reading the provisions of the SMA in a gender-neutral manner
would impact the interpretation of the provisions of the ISA as well;
E. By virtue of Section 21A, the rules of succession under the HMA
shall apply for marriages solemnized between a male and female
professing the Hindu, Buddist, Sikh or Jain religion. The HSA
prescribes different rules for succession based on gender.
Reading the provisions of the SMA in a gender-neutral manner
would render the HSA unworkable; and
F. Other provisions of the SMA such as Sections 27, 31, 36, and 37
cater to the needs and requirements of a woman in a heterosexual
marriage. A reading of the SMA in a gender-neutral manner would
impact the interpretation of these provisions.
m. By declaring that non-heterosexual couples have a right to marry, this Court
would be granting legal recognition to a new social relationship. Such a
declaration by this Court could also pre-empt debates on this issue in the
legislature; and
n. The term ‘spouse’ in Section 7A of the Citizenship Act 1955 cannot be read in
a gender neutral manner. Section 7A of the Citizenship Act applies to the same
class of persons to whom the FMA applies. The FMA expressly uses the
phrases ‘bride’ and ‘bridegroom.’ Section 4 of the FMA prescribes the same
conditions for the registration of a marriage as Section 4 of SMA.
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PART B
43. Mr. Kapil Sibal, learned senior counsel appearing for intervenor made the
following submissions:
a. Marriage was defined by the social acceptability of a relationship even before
it was codified. The heterosexual nature of a marriage was not introduced by
law. Law merely regulated unions which were socio-historically recognised.
The law has always differentiated between heterosexual and non-
heterosexual unions;
b. A legal recognition of a union is premised on the recognition of a relationship
on an individual level, family level, and societal level;
c. The right of a person to choose a partner of their choice is protected under
Article 21. However, the legislative recognition of such a choice is not a
fundamental right;
d. The right to marry cannot be traced to the right to privacy. The right to privacy
postulates the right to be left alone. There is a negative obligation on the State
and the society to not interfere with choices of individuals. However, if the
exercise of the right to privacy has a public dimension, the State must regulate
the exercise of the right in the larger interest of the community. The State has,
in the past, regulated the parameters of choice within the realm of marriage
with respect to the number of partners and the age of marriage. Thus, the
right to the recognition of non-heterosexual unions is not traceable in Article
21;
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PART B
e. The South African Supreme Court in Minister of Home Affairs v. Fourie 53
and the United States Supreme Court in Obergefell v. Hodges, Director,
Department of Health 54 while recognising the right to marry acknowledged
the importance and relevance of social debate and public discourse on the
issue. The courts observed that the public has become more accepting of
non-heterosexual unions. While it may not be necessary to reach public
consensus on social issues, it is still important to have some form of discourse
on the issue be it through law commissions, referendums, bills in the
legislature, or even High Court decisions;
f. Public engagement also goes hand-in-hand with an incrementalistic approach
by the courts or the legislature. For example, Mexico City recognised
cohabitation partnership of homosexual unions in 2006. Three years later,
their right to marry was recognised. In South Africa, before the judgment in
Fourie (supra), the constitutional court had dealt with the criminalisation of
sodomy, 55 the rights of same-sex immigrant partners56, the right to adoption
of same-sex partners 57, and the non-inclusion of same-sex partners in a
statute providing pension rights 58;
g. This Court instead of limiting its judgment to the reliefs sought by the
petitioners, must also address the following issues:
53 (2006) 1 SA 524
54 576 US 644 (2015)
55 Sodomy Case, 1999(1) SA 6 (CC)
56 Home Affairs case, 2000(2) SA 1 (CC)
57 Du Troit, 2003 (2) SA 198 (CC)
58 Satchwell, 2002 (6) SA 1 (CC)
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PART B
(i) Whether the LGBTQIA+ community, being a sexual minority, is entitled
to be protected even in the absence of a law;
(ii) The recognition of the hindrances faced by LGBTQIA+ unions and the
procedure to resolve the difficulties; and
(iii) The necessity of administrative procedures and guidelines recognizing
that sexual orientation is a physiological phenomenon and that same
sex unions must not be discriminated against.
h. The assumption of the petitioners that both law and society must consider
non-heterosexual unions as belonging to the same class as heterosexual
unions without distinction based on sexual orientation is wrong. The exclusion
of non-heterosexual unions from the SMA is not violative of Articles 14 and
15 of the Constitution;
i. Marriage between “any two persons” as provided in Section 4 of SMA and
FMA cannot include non-heterosexual unions for the following reasons:
(i) Section 4(a) states that marriage cannot be solemnised if either party
has a spouse living at the time of marriage. The SMA, when it was
enacted, referred to marriages which had taken place before it came
into force. In that case, the word ‘spouse’ could have only been used
in the context of heterosexual marriages; and
(ii) The mere usage of a gender-neutral term does not indicate the
legislative will to include non-heterosexual unions within the ambit of
the enactment.
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PART B
j. The statute is not underinclusive for impliedly excluding non-heterosexual
unions from its purview because Parliament did not contemplate the inclusion
of non-heterosexual marriages at the time of enactment. A statute will be
under-inclusive only where a statute which must necessarily cover a category
excludes them from the benefits it confers. The principle will not apply to
persons who are not ex-facie covered by the statute;
k. The interpretative tool of “reading-in” means reading into the text of the statute
and not altering it. Reading the word “spouse” into SMA where the words
“husband” and “wife” are used would render provisions which are enacted
based on conventional ideas about a heterosexual relationship redundant;
l. The legislative regime related to marriage and other allied issues has been
enacted in response to the unique challenges that heterosexual marriages
face. Even if this Court finds that the Constitution grants a right to legal
recognition of non-heterosexual unions, a new legislative regime regulating
non-heterosexual marriages must be introduced to respond to the unique
challenges they face; and
m. This Court can use its power under Article 142 to fill legislative vacuums to
the limited extent of laying down procedural guidelines. The court cannot
create substantive rights and obligations to fill a legislative vacuum because
it would amount to judicial legislation. This Court can neither direct the
legislature to enact a law nor direct the legislature when to enact a law. These
are established parameters of separation of powers and must be respected.
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PART B
44. Mr. Arvind P Datar, learned senior counsel appearing for one of intervenors
made the following submissions:
a. This Court has recognised the right to marry in KS Puttaswamy (9J) (supra),
Shafin Jahan (supra), Shakti Vahini (supra) and Navtej (supra). However,
only Justice Nariman’s opinion in Navtej (supra) held that non-heterosexual
couples also have a right to marry;
b. A statute can be struck down after a passage of time only if the rationale of
the law ceases to exist as in the case of Section 377 of the IPC where medical
research indicated that same sex relationships are not unnatural or against
the order of nature;
c. This Court while interpreting provisions of a statute can “iron out the creases
but not alter the fabric.” The exercise of reading up can only be undertaken
by the Courts when it would be consistent with legislative intention, when it
would not alter the nature of the enactment, and when the new state of affairs
would be of the same kind as the earlier state of affairs to which the enactment
applies;
d. The judgment of the High Court of Madras in Arunkumar (supra) interpreting
the word “bride” in the Hindu Marriage Act to include transgender and intersex
persons is contrary to the judgment of this Court in Madhu Kishwar v. State
of Bihar 59 where it was held that male pronouns must not be expansively
interpreted to include female pronouns within their ambit;
59 (1996) 5 SCC 125
57
PART B
e. The legal recognition of non-heterosexual unions is a polycentric issue which
cannot be resolved solely by the judiciary;
f. Unenumerated rights or derivate rights, which are recognised by courts
through judicial interpretation are inchoate rights because they are an
exception to the rule of ubi jus ibi remedium. 60 Thus, even if this Court
recognises the petitioners’ right to marry, it is not enforceable.
45. Ms. Aishwarya Bhati, learned Additional Solicitor General, appearing for one
of the intervenors made the following submissions:
a. Article 21 guarantees that every child will have the best upbringing. The
petitioners have not submitted any data to prove that the interests of the child
would be protected if they are raised by non-heterosexual parents. A child
born to a heterosexual couple is innately adaptable to a similar family
environment and naturally seeks out a family environment which is
comparable to their birth family;
b. Chapter II of the JJ Act which lays down the General Principles of Care and
Protection of Children stresses upon the best interest of the child. Principle
xiii states that every child in the juvenile justice system has a right to be
restored to the same socio-economic and cultural status as they were earlier
in;
c. Men and women are differentiated for the purpose of adoption, assisted
reproduction, and surrogate reproduction. For example, the law does not
60 HM Seervai, The Privy Purse Case: A Criticisum, (1972) 74 Bom LR (journal) 37
58
PART B
permit a man to adopt a girl child. The scheme of the laws relating to adoption
and surrogacy must be revamped for the inclusion of any of the excluded
categories of intending parents; and
d. The law protects a child by assuming that they are incapable of entering in
contracts, of committing an offence, and of consenting to a sexual
relationship. Thus, children cannot be imposed upon with emerging and
evolving notions of gender fluidity. Children cannot be made guinea pigs of
an evolving social experiment. The state is justified in prescribing reasonable
restrictions for adoption, assisted reproductive technology, and surrogacy
based on the welfare of children.
46. Mr. Rakesh Dwivedi, learned senior counsel appearing on behalf of the
State of Madhya Pradesh made the following submissions:
a. Only thirty-four of the one hundred and ninety-four countries have recognised
marriage between non-heterosexual individuals. Out of the thirty-four
countries, the legislature has recognized it in twenty-four of them. At least
twenty of the twenty-four countries enacted a framework for registered
partnerships or civil unions for granting legal recognition to non-heterosexual
unions. In ten countries, the courts have directed the State to recognise non-
heterosexual marriages. The approach taken by the courts in these ten
countries is not uniform. The approach is specific to social complexities and
legal arrangements in each of the countries;
b. The laws relating to marriage, and the benefits (and rights) which accrue
because of marriage are not uniform. The laws take into account religious and
59
PART B
regional differences. The principle of non-discrimination in Article 14 and
15(1) does not mandate that marriage must be organised and recognised in
a uniform manner. The principle of equality does not postulate uniformity;
c. The principle of non-discrimination in Article 14 is not violated if the law is not
“all-embracing.” The legislature can choose to remedy certain degrees of
harm;
d. It is for the legislature to decide if non-heterosexual unions must be legally
recognised, and what benefits and entitlements must be conferred to the
union;
e. Legislations governing unions and the benefits which accrue because of
unions do not become unconstitutional after the decriminalisation of
homosexuality in Navtej (supra). Decriminalisation of a sexual offence does
not automatically confer legal recognition to a union;
f. The opinion of the majority in Navtej (supra) held that homosexuals have a
right to form a union under Article 21. This Court specifically observed that a
union does not mean marriage. Thus, Navtej (supra) has ruled out the
possibility of non-heterosexual marriages; and
g. The observation in Puttaswamy (9J) (supra) that the State has a positive
obligation to provide legal protection to enable the exercise of choice was
limited to the specific context of data protection. Such an obligation can be
imposed on the State only when a right is infringed because of actions of the
State.
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PART B
47. Mr. Maninder Singh, learned senior counsel, submitted that Section 112 of
the Indian Evidence Act 1872 which provides that birth during the sustenance of
marriage or two hundred and eighty days after the dissolution of marriage is a
conclusive proof of legitimacy establishes that procreation is a chief component of
marriage. He further submitted that an alteration of the chief component of
marriage would render other laws which are premised on the heteronormative
nature of marriage unworkable.
48. Mr. Atamaram Nadkarni, senior counsel appearing for an intervenor (Akhil
Bharatiya Sant Samiti) submitted that the SMA is interwoven with personal law. He
argued that the recognition of non-heterosexual marriages under the SMA would
impact personal laws on succession, and adoption.
49. Ms. Manisha Lavkumar, learned senior counsel appearing for the State of
Gujarat made the following submissions:
a. Though the rules of marriage continue to evolve, they are still grounded in
heterosexual relationships;
b. There is an overarching State interest in excluding non-heterosexual unions
from the ambit of marriage because it: (a) regulates matrimonial conduct; (b)
preserves social order; and (c) ensures the progression of society in a
legitimate manner;
c. The State can impose reasonable restrictions on individual autonomy and
consent by introducing conditions such as the number of marriages, the
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PART B
minimum age for marriage and the degrees of prohibited relationship. The
heterosexual nature of a relationship is one such reasonable restriction; and
d. The FMA is modelled on the SMA. The FMA also envisages a heterosexual
union. Section 23 of the FMA states that the Central Government may
recognise marriages solemnised in a foreign country as valid in India only if
the law in the foreign country on marriage is similar to the FMA. Since the
FMA only includes heterosexual unions, a non-heterosexual marriage
solemnised in a foreign country cannot be recognised in India.
50. Mr. J Sai Deepak, learned counsel appearing on behalf of an intervenor
made the following submissions:
a. A judicial sanctioned legal recognition of non-heterosexual union would be a
colonial top-down imposition of morality. Such an approach would diminish
democratic voices in the process;
b. The issue of lack of legal recognition of non-heterosexual unions is placed
differently as opposed to the legislative vacuum on sexual harassment at
workplaces. The history and purpose of the SMA does not permit the Court
to issue guidelines under Article 141 as it did in Vishaka (supra). The power
under Article 141 to issue guidelines must be used sparingly. The power must
not be used to take over the functions of the other organs of the State;
c. The judgments of this Court in NALSA (supra) and the Madras High Court in
Arun Kumar (supra) suffer from internal and external inconsistencies; and
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PART B
d. The LGBTQIA+ community is not a homogenous class. The court cannot
cater to the interests of a heterogenous class which they constitute. The
legislature would be better placed to cater to their needs.
51. Mr. MR Shamshad, learned counsel appearing for an intervenor submitted
that a declaration that non-heterosexual couples have a right to marry would
conflict with the tenets of religion where marriage is considered a heterosexual
union.
52. Ms. Priya Aristotle, learned counsel appearing for an intervenor submitted
that granting non-heterosexual couples parental rights would affect the children of
heterosexual couples.
53. Mr. Sasmit Patra, learned counsel appearing for the intervenor submitted
that:
a. Granting legal recognition to non-heterosexual unions would require wide
ranging amendments to various laws. It is only the legislature which has the
capacity and functionality to deal with matters of such wide implication;
b. A declaration by this Court that non-heterosexual unions have a right to marry
cannot be implemented without the aid of the legislature and executive; and
c. A social change of this magnitude will not be fructified if the role of the polity
in the process is negligent.
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PART C
54. Ms. Archana Pathak Dave, learned counsel appearing for an intervenor (Ex-
Servicemen Advocates Welfare Association) submitted that non-heterosexual
marriages must not be permitted particularly for personnel working in the armed
forces because Article 33 permits restrictions on their fundamental rights. It was
submitted that granting legal recognition to non-heterosexual marriages may dilute
the disciplinary code in the army, the navy, and the air force, would create conflicts
in the workplace over personal and religious beliefs, and would raise concerns
about shared facilities such as communal showers and shared rooms.
55. Ms. Manisha Narain Agarwal, learned counsel appearing for an intervenor
submitted that the petitioners are seeking social acceptance of their relationships
through an order the Court. This Court does not have powers of such magnitude.
56. Mr. Atulesh Kumar, Ms. Sanjeevani Agarwal, and Mr. Som Thomas
appearing on behalf of various intervenors adopted the above arguments.
C. Reliefs sought in the proceedings
57. The petitioners in this batch of petitions have made certain general prayers,
in addition to the prayers specific to the facts of their case. The general reliefs
sought are summarized below. The petitioners seek that this Court declare that:
a. LGBTQ persons have a right to marry a person of their choice regardless of
religion, gender and sexual orientation;
b. The SMA is violative of Articles 14, 15, 19, 21, and 25 of the Constitution
insofar as it does not provide for the solemnization of marriage between
same-sex, gender non-conforming or LGBTQ couples;
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PART C
c. The SMA applies to any two persons who seek to get married, regardless of
their gender identity and sexual orientation;
d. The words “husband” and “wife” as well as any other gender-specific term in
the SMA ought to be substituted by the word “party” or “spouse”;
e. All rights, entitlements and benefits associated with the solemnization and
registration of marriage under the SMA are applicable to LGBTQ persons;
f. Sections 5, 6, 7, 8, 9, 10 and 46 of the SMA which contain requirements
regarding the publication of a public notice of a proposed marriage and the
domicile of the couple, and which empower the Marriage Registrar to receive
and decide objections to the proposed marriage are violative of Articles 14,
15, 19 and 21 of the Constitution;
g. The validity of marriages already solemnized or registered under the SMA will
not be jeopardized if one spouse transitions to their self-determined gender
identity;
h. The word “spouse” in Section 7A(1)(d) of the Citizenship Act is gender-neutral
and is applicable to all spouses of foreign origin regardless of sex or sexual
orientation;
i. LGBTQ couples have a right to register their marriages under Section 5 of the
HMA and under Section 17 of the FMA if they are lawfully married in a foreign
jurisdiction and at least one of them is an Indian citizen;
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PART C
j. The FMA violates Articles 14, 15, 19 and 21 of the Constitution of India and
is unconstitutional and void insofar as it does not provide for the registration
of marriages between same-sex or gender non-conforming or LGBTQ
couples;
k. The FMA applies to any two persons who seek to get married, regardless of
their gender identity and sexual orientation;
l. The words “bride” and “bridegroom” as well as any other gender-specific term
in the FMA have to be substituted by the word “party” or “spouse”;
m. All rights, entitlements, and benefits associated with the solemnization and
registration of marriage under the FMA are applicable to LGBTQ persons;
n. Regulations 5(2)(a) and 5(3) read with Schedules II, III and VI of the Adoption
Regulations are unconstitutional and ultra vires the JJ Act insofar as they
exclude LGBTQ couples from joint adoption;
o. The words “married couple” and “marital relationship” used in Regulations
5(2)(a) and 5(3) of the Adoption Regulations encompass LGBTQ couples
married under foreign laws;
p. The phrases “male applicant” and “female applicant” are substituted by the
phrases “Prospective Adoptive Parent 1” and “Prospective Adoptive Parent 2
(in case of applicant couples)” in Schedules II, III, VI and VII of the Adoption
Regulations;
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PART C
q. Section 5 of the HMA does not distinguish between homosexual and
heterosexual couples and the former have a right to marry under the HMA;
r. LGBTQ persons have a constitutional right to a “chosen family” in lieu of next
of kin under all laws as an intrinsic part of their right to a dignified life under
Article 21;
s. An unmarried person can nominate “any person(s)” to act as their nominee or
next of kin, irrespective of whether such person is a “guardian, close relative
or family member,” with respect to healthcare decisions in case of incapacity
such as the execution of Advance Directives and assigning any legal right,
interest, title, claim or benefit accrued to the person;
t. The State Governments must apply all preventative, remedial, protective, and
punitive measures including the establishment of safe houses similar to the
Garima Greh welfare scheme, in order to guarantee the safety and security
of all individuals irrespective of gender identity and sexual orientation;
u. The provisions of matrimonial statutes including the rules and regulations
framed thereunder, to the extent that they are construed as requiring one
“male” or “bridegroom” and one “female” or “bride” for the solemnization of
marriage be read as neutral as to gender identity and sexual orientation; and
v. All marriages between couples in which either one or both partners are
transgender or gender non-conforming or who otherwise do not identify with
the sex assigned to them at birth, may be solemnized under matrimonial
statutes regardless of their gender identity and sexual orientation.
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PART D
58. In addition, the petitioners have sought directions to the Union Government,
the State Governments, and district and police authorities to adopt and follow a
protocol in cases which concern adult, consenting LGBTQ persons who require
protection from their families, regardless of whether such persons are married;
D. Analysis
i. This Court is vested with the authority to hear this case
59. The respondents argued that this Court should not decide the issue of
whether legal recognition in the form of marriage can be given to non-heterosexual
relationships. It was argued that this issue must necessarily be decided by the
people by themselves or through the elected representatives. It was also submitted
that this Court, by deciding the issue one way or the other, would pre-empt any
debate in the legislature.
60. The respondent’s submission is two-fold: first, the Court does not have the
power to decide this issue; and second, such a decision can be arrived at only
through a process that reflects the electoral will.
a. Article 32 vests this Court with the power to enforce the rights in Part
III of the Constitution
61. Part III of the Constitution of India enshrines the fundamental rights of the
people of India. Article 13 of the Constitution stipulates that the State shall not
make any law which takes away or abridges the rights conferred in Part III and that
any law made in contravention of this condition, shall, to the extent of the
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PART D
contravention, be void. Article 32 complements Article 13 and provides the right to
a constitutional remedy for the enforcement of rights conferred by Part III:
“Article 32. Remedies for the enforcement of rights
conferred by this Part.
(1) The right to move the Supreme Court by appropriate
proceedings for the enforcement of the rights conferred
by this Part is guaranteed.
(2) The Supreme Court shall have power to issue
directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate, for
the enforcement of any of the rights conferred by this Part.”
(emphasis supplied)
62. The Constitution of India is unique in that its provisions expressly accord the
judiciary with the power to review the actions of the legislative and executive
branches of government, unlike in many other countries. Article 32 makes
fundamental rights justiciable and is worded broadly. The right to approach this
Court for the enforcement of the fundamental rights embodied in Part III is itself a
fundamental right by virtue of Clause (1) of Article 32. It states that this Court may
be moved “by appropriate proceedings.” This expression means that the
appropriateness of the proceedings depends on the relief sought by the
petitioner. 61 Clause (1) of Article 32 does not place any constraints on the power
of this Court to entertain claims that the rights enumerated in Part III have been
violated.
61 Daryao v. State of U.P, (1962) 1 SCR 574
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63. Similarly, Clause (2) is worded expansively and enlarges the scope of the
powers of this Court to enforce fundamental rights. This is evident from two parts
of the clause:
a. First, Clause (2) provides this Court with the power to issue “directions,
orders, or writs,” which indicates that this Court may mould the relief
according to the requirements of the case before it and that it is not
constrained to a particular set of cases in which a particular relief or set of
reliefs may be granted. This expression indicates that the power of this Court
is not limited to striking down an offending statute, rule, or policy. Rather, it
extends to issuing directions or orders or writs for the enforcement of
fundamental rights. Put differently, this means that the power of this Court is
not only ‘negative’ in the sense that it may restrain the state from doing
something which infringes upon the fundamental rights of people but is also
‘positive’ in the sense that it may compel the state to do something or act in a
manner which gives effect to such rights; and
b. Second, the word “including” in Clause (2) indicates that the five writs
mentioned in that clause are illustrative. The word “including” is used as a
word of enlargement. This Court may issue directions, orders, or writs other
than the five writs specified. 62
Therefore, the manner in which Article 32 has been drafted does not limit the
powers of this Court. To the contrary, it clearly and unambiguously vests this Court
62 State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571
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with the power to conduct judicial review and give effect to the fundamental rights
enumerated in Part III.
64. The extent of the powers vested in this Court by Article 32 as envisaged by
the framers of the Constitution can be understood from the Constituent Assembly’s
discussion of the provision which was eventually adopted as Article 32.63 Mr. H V
Kamath was of the opinion that it was unwise to particularize the writs which this
Court ought to issue, and that this Court should have the power to issue any
directions it considered appropriate in a case.64 In service of this idea, he moved
an amendment to substitute clause (2) of the provision which is now Article 32. The
substituted clause was to read:
“The Supreme Court shall have power to issue such directions
or orders or writs as it may consider necessary or appropriate
for the enforcement of any of the rights conferred by this
part.” 65
65. Responding to this proposal, Dr. B R Ambedkar underscored that this Court
had been endowed with wide powers of a general nature:
“…what has been done in the draft is to give general power
as well as to propose particular remedies. The language of
the article is very clear … These are quite general and wide
terms.
… these writs … ought to be mentioned by their name in the
Constitution without prejudice to the right of the Supreme
Court to do justice in some other way if it felt it was
desirable to do so. I, therefore, say that Mr. Kamath need
have no ground of complaint on that account.” 66
(emphasis supplied)
63 Vikram Aditya Narayan and Jahnavi Sindhu, ‘A historical argument for proportionality under the Indian
Constitution’ (2018) Vol. 2(1) ILR 51
64 Constituent Assembly Debates, Volume 7, 9 December 1948.
65 Constituent Assembly Debates, Volume 7, 9 December 1948.
66 Constituent Assembly Debates, Volume 7, 9 December 1948.
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The power of this Court to do justice is not, therefore, limited either by the manner
in which Article 32 has been constructed or by any part of the Constitution. It is
amply clear from both the plain meaning of Article 32 as well as the Constituent
Assembly Debates that this Court has the power to issue directions, orders, or writs
for the enforcement of the rights incorporated in Part III of the Constitution.
b. Judicial review and separation of powers
66. The doctrine of separation of powers, as it is traditionally understood, means
that each of the three organs of the state (the legislature, the executive, and the
judiciary) perform distinct functions in distinct spheres. No branch performs the
function of any other branch. The traditional understanding of this doctrine (also
termed the “pure doctrine” 67) does not animate the functioning of most modern
democracies. That our Constitution does not reflect a rigid understanding of this
doctrine has long been acknowledged by this Court. 68 In practice, a functional and
nuanced version of this doctrine operates, where the essential functions of one
arm of the state are not taken over by another arm and institutional comity guides
the actions of each arm. 69 In other words, the functional understanding of the
separation of powers demands that no arm of the state reigns supreme over
another.
67. Thu Union of India suggested that this Court would be violating the doctrine
of separation of powers if it determines the lis in this case. The separation of
powers undoubtedly forms a part of the basic structure of the Constitution, but
67 MJC Vile, Constitutionalism and the Separation of Powers (2nd ed. Liberty Fund 1967).
68 Rai Sahib Ram Jawaya Kapur v. State of Punjab, (1955) 2 SCR 225
69 Kalpana Mehta v. Union of India, (2018) 7 SCC 1
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equally, the power of courts to conduct judicial review is also a basic feature of the
Constitution. 70 The doctrine of separation of powers certainly does not operate as
a bar against judicial review. 71 In fact, judicial review promotes the separation of
powers by seeing to it that no organ acts in excess of its constitutional mandate. It
ensures that each organ acts within the bounds of its remit. Further, as discussed
in the previous segment of this judgment, the Constitution demands that this Court
conduct judicial review and enforce the fundamental rights of the people. The
framers of our Constitution were no doubt conscious of this doctrine when they
provided for the power of judicial review. Being aware of its existence and what it
postulates, they chose to adopt Article 32 which vests this Court with broad powers.
The doctrine of separation of powers cannot, therefore, stand in the way of this
Court issuing directions, orders, or writs for the enforcement of fundamental rights.
The directions, orders, or writs issued for this purpose cannot encroach upon the
domain of the legislature. This Court cannot make law, it can only interpret it and
give effect to it.
68. The existence of the power of judicial review cannot be conflated with the
manner in which the power is exercised. The exercise of the power of judicial
review abides by settled restraints which acknowledge that the power of law
making is entrusted to democratically elected legislative bodies and that the
formulation and implementation of policy is entrusted to a government which is
accountable to the legislature. In the exercise of its the legislative function the
legislature may incorporate policies which will operate as binding rules of conduct
70 S P Sampath Kumar v. Union of India, (1987) 1 SCC 124
71 State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571
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to operate in social, economic and political spaces. Judicial review is all about
adjudicating the validity of legislative or executive action (or inaction) on the anvil
of the fundamental freedoms incorporated in Part III and on the basis of
constitutional provisions which structure and limit the exercise of power by the
legislative and executive arms of the State.
69. Judicial review is a constitutionally entrenched principle which emanates
from Article 13. It is not a judicial construct. The power of judicial review has been
expressly conferred by the Constitution. In the exercise of the power of judicial
review, the Court is cognizant of the fact that the legislature is a democratically
elected body which is mandated to carry out the will of the people. It is in
furtherance of this mandate that Parliament and the State legislatures enact laws.
Courts are empowered to adjudicate upon the validity of legislation and
administrative action on the anvil of the Constitution. In the exercise of the power
of judicial review, the Court does not design legislative policy or enter upon the
legislative domain. This Court, will hence not enter into the legislative domain by
issuing directions which for all intents and purposes would amount to enacting law
or framing policy.
c. The power of this Court to enforce rights under Article 32 is different
from the power of the legislature to enact laws
70. In Powers, Privileges and Immunities of State Legislatures, In re, 72 a seven-
Judge Bench of this Court held:
72 (1965) 1 SCR 413
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“…whether or not there is distinct and rigid separation of
powers under the Indian Constitution, there is no doubt that
the Constitution has entrusted to the Judicature in this country
the task of construing the provisions of the Constitution and of
safeguarding the fundamental rights of the citizens … If the
validity of any law is challenged before the courts, it is never
suggested that the material question as to whether legislative
authority has been exceeded or fundamental rights have been
contravened, can be decided by the legislatures themselves.
Adjudication of such a dispute is entrusted solely and
exclusively to the Judicature of this country…”
Hence, it falls squarely within the powers of this Court to adjudicate whether the
fundamental rights of queer persons have been infringed, as claimed by the
petitioners.
71. This Court will not issue a mandamus to Parliament but will determine the
scope and effect of certain fundamental rights. What do these rights mean and
what are their incidents? What do they require of the state? What are their
boundaries? In answering these questions, this Court is not enacting law or framing
policy but is performing its constitutionally mandated function of interpreting the
Constitution and enforcing the rights it recognizes. This Court cannot ignore its duty
to fulfil the mandate of Articles 13 and 32. The distinction between law-making and
adjudicating the rights of the people by interpreting the Constitution and enforcing
these rights, as required by Article 32, cannot be forgotten.
72. This Court has previously utilized its power under Article 32 to issue
directions or orders for the enforcement of fundamental rights. This power does not
extend only to striking down an offending legislation but also to issuing substantive
directions to give effect to fundamental rights, in certain situations. In Common
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Cause v. Union of India, 73 a Constitution Bench of this Court (of which one of us,
Justice D Y Chandrachud was a part) found that the right to life, dignity, self-
determination, and individual autonomy meant that people had a right to die with
dignity. This Court delineated guidelines and safeguards in terms of which Advance
Directives could be issued to cease medical treatment in certain circumstances.
Similarly, in Vishaka (supra) this Court issued guidelines for the protection of
women from sexual harassment at the workplace. These guidelines were grounded
in the fundamental rights to equality under Article 14, to practise any profession or
to carry out any occupation, trade or business under Article 19(1)(g), and to life
and liberty under Article 21. The decisions of this Court in Common Cause (supra)
and Vishaka (supra) are significant because this Court issued directions for the
enforcement of fundamental rights in the absence of a law which was impugned
before it.
d. The power of judicial review must be construed in terms of the
Constitution of India and not in terms of the position of law in other
jurisdictions
73. A common mistake in the legal community is to refer to the doctrines and
decisions of other jurisdictions regardless of the context in which they arose. The
jurisprudence of other countries no doubt facilitates an exchange of ideas and
acquaints us with the best practices in the field. It illuminates the potential benefits
and pitfalls of a particular approach and enables us to dwell on whether to accept
and if we do so, whether to improve on that approach. However, a particular
73 (2018) 5 SCC 1
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doctrine or legal standard ought not to be borrowed blindly. The first and foremost
authority is the Constitution or any law in India. An appropriate tool of interpretation
must be used to discern the law as laid down by the Constitution or by any statute,
rule, or regulation. This precept applies with equal force to the question of judicial
review in India. Judicial review has to be conscious of our own social and cultural
milieu and its diversity.
74. Parliament being sovereign in England, the courts of England do not have
the power to strike down a statute as being contrary to its basic law. This status of
affairs cannot, of course, be superimposed on the relationship between our
legislative bodies and courts. In Powers, Privileges and Immunities of State
Legislatures, In re (supra), this Court held that the Constitution is supreme and
sovereign in India and that legislative bodies in India are not sovereign in the same
way as Parliament is in England. Hence, the limitations which apply to the Supreme
Court of the United Kingdom while it conducts judicial review do not apply to this
Court. Similarly, the restrictions on judicial review in the United States of America
cannot be imported without any regard to our Constitution.
75. The Union of India relied on various decisions of the Supreme Court of the
United States of America including the decisions in Day-Brite Lighting Inc. v.
Missouri 74 and the dissenting opinion of Oliver Wendell Holmes, J. in Lochner v.
New York 75 for the proposition that this Court would be in danger of becoming a
“super legislature” if it decided the issues which arise in the present proceedings.
This argument misses the crux of the matter. The Supreme Court of the United
74 342 US 421 (1952)
75 198 US 45 (1905)
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States of America established its power of judicial review in Marbury v. Madison. 76
The text of the US Constitution does not vest their courts with this power, unlike in
India. The Constitution of India expressly authorises judicial review. While doing
this the Constitution confers broad powers on this Court as discussed in the
previous segment of this judgment. This being the case, it is injudicious to borrow
from the jurisprudence of the US on judicial review, its boundaries, legitimacy, and
the type of cases which warrant deference to legislative bodies. In State of Madras
v. V.G. Row, 77 a Constitution Bench of this Court held:
“20. …we think it right to point out, what is sometimes
overlooked, that our Constitution contains express provisions
for judicial review of legislation as to its conformity with the
Constitution, unlike as in America where the Supreme Court
has assumed extensive powers of reviewing legislative Acts
… If, then, the courts in this country face up to such important
and none too easy task, it is not out of any desire to tilt at
legislative authority in a crusader's spirit, but in discharge of a
duty plainly laid upon them by the Constitution.”
Similarly, in Romesh Thappar v. State of Madras,78 this Court held that there was
no remedy in the US which was analogous to the one provided by Article 32 of the
Constitution of India. Therefore, the contours of the power of this Court to conduct
judicial review must be construed in terms of the Constitution of India and not in
terms of the position of law in other jurisdictions.
e. The role of courts in the democratic process
76. The argument of the respondents that any decision by this Court on this
issue would be anti-democratic is not an argument that is specific to the issues
76 5 US 137 (1803)
77 (1952) 1 SCC 410
78 1950 SCC 436
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which have been raised before us in this batch of petitions. Rather, it is an
argument which strikes at the legitimacy of the judicial branch. The argument that
the decision of the elected branch is democratic and that of the judicial branch is
not is premised on the principle of electoral representation. The proposition is that
the exercise of the power of judicial review would constrain the right of citizens to
participate in political processes. This is because courts are vested with the power
to overturn the will of the people which is expressed through their elected
representatives.
77. This is a narrow definition of democracy, where democracy is viewed
through electoral mandates and not in constitutional terms. Additionally, it
overlooks the importance of a Constitution which prescribes underlying values and
rules of governance for the sustenance of a democratic regime. If all decisions of
the elected wing of the State are considered to be democratic decisions purely
because of the manner in which it is vested with power, what then, is the purpose
of the fundamental rights and the purpose of vesting this Court with the power of
judicial review? Framing the argument on the legitimacy of the decisions of this
Court purely in terms of electoral democracy ignores the Constitution itself and the
values it seeks to engender.
78. Electoral democracy – the process of elections based on the principle of
‘one person one vote’ where all citizens who have the capacity to make rational
decisions (which the law assumes are those who have crossed the age of
eighteen) contribute towards collective decision making is a cardinal element of
constitutional democracy. Yet the Constitution does not confine the universe of a
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constitutional democracy to an electoral democracy. Other institutions of
governance have critical roles and functions in enhancing the values of
constitutional democracy. The Constitution does not envisage a narrow and
procedural form of democracy. When the people of India entered into a social
contract in the form of a Constitution, they chose the conception of democracy
which not only focused on rule by elected bodies but also on certain substantive
values and on institutional governance. The Constitution defined democracy in
terms of equal rights in political participation and of self-determination.
79. When democracy is viewed in this substantive and broad manner, the role
of courts is not democracy-disabling but democracy-enabling. Much like the
elected branch, the legitimacy of courts is also rooted in democracy. It is rooted in
not operating in a democratic manner because if it was, then courts may be swayed
by considerations which govern and guide electoral democracy.79 By vesting the
judicial branch with the power to review the actions of other institutions of
governance (including the legislature and the executive) on the touchstone of
constitutional values, the Constitution assigns a role to the judiciary. 80 The
institutions of governance place a check on the exercise of power of the other
institutions to further constitutional values and produce better, more democratic
outcomes.
80. Courts contribute to the democratic process while deciding an issue based
on competing constitutional values, or when persons who are unable to exercise
79 Robert M Cover, ‘The Origins of Judicial Activism in the Protection of Minorities’, 1982 Yale law journal, Vol 1(7)
June 1982
80 Mathew EK Hall, Judicial Review as a Limit on Government Domination: Reframing, resolving, and replacing the
counter-majoritarian difficulty, 2016 Perspectives on politics, Volume 14(2) June 2016 , 391
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their constitutional rights through the political process knock on its doors. For
instance, members of marginalized communities who are excluded from the
political process because of the structural imbalance of power can approach the
court through its writ jurisdiction to seek the enforcement of their rights.
ii. Is queerness ‘un-Indian’? Who is an Indian? What practices are Indian?
a. Queerness is a natural phenomenon which is known to India since
ancient times
81. The question of whether homosexuality or queerness is unnatural is no
longer res integra, in view of the decision in Navtej Singh Johar (supra) where
this Court held that it is innate and natural. The contention of the Union of India
that heterosexual unions precede law while homosexual unions do not cannot be
accepted in view of the decision in Navtej Singh Johar (supra) where this Court
held that queer love has flourished in India since ancient times.
82. The respondents have also averred that homosexuality or gender
queerness is not native to India. This contention does not hold any water. In India,
persons with a gender queer identity who do not fit into the binary of ‘male’ and
‘female’ have long been known by different names including hijras, kothis,
aravanis, jogappas, thiru nambis, nupi maanbas and nupi maanbis. In fact, the
term ‘transgender person’ as it is understood in English or the ‘third gender’ does
not always fully or accurately describe the gender identity of those who are known
by some of these terms. Additionally, the social structure of the communities of
transgender persons in India is unique and does not mirror ‘western’ structures. It
is native to our country. The judgment of this Court in NALSA (supra) also explored
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the presence of the transgender identity and other forms of gender queerness in
Indian lore.
83. In With Respect to Sex: Negotiating Hijra Identity in South India, 81 Gayatri
Reddy documents the different manifestations of kinship in hijra communities,
including the guru-chela (or teacher-disciple) relationship, the mother-daughter
relationship, and the ‘jodi’ (or bond) with a husband. She describes how many
hijras enter into unions with men, who are referred to as their ‘pantis.’ These unions
span over many months or many decades, depending on the couple in question.
Many men in such unions have made their natal families aware about their
relationship with their partner, and in some cases, the hijras would sometimes meet
their partner’s natal family. They sometimes referred to their relationship as one of
‘marriage.’ Men also assaulted their partners and displayed other violent
tendencies. Some hijras maintained contact with their biological family, most
notably the mother. Although many hijras were in romantic, long-lasting
partnerships with men or in touch with their natal family, they considered other
hijras as constituting their family as opposed to their ‘pantis’ or their biological
families. 82 In many communities, hijras are customarily invited to auspicious events
(such as the birth of a child) to bless the family in question.
84. Like the English language, some English words employed to describe queer
identities may have originated in other countries. However, gender queerness,
transgenderism, homosexuality, and queer sexual orientations are natural, age-old
81 Gayatri Reddy, With Respect to Sex: Negotiating Hijra Identity in South India (The University of Chicago Press
2005)
82 ibid
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phenomena which have historically been present in India. They have not been
‘imported’ from the ‘west.’ Moreover, if queerness is natural (which it is), it is by
definition impossible for it to be borrowed from another culture or be an imitation of
another culture.
b. Queerness is not urban or elite
85. The respondents, including the Union of India, have contended that
homosexuality and queer gender identities or transgenderism are predominantly
present in urban areas and amongst the elite sections of society. They assert that
variations in gender and sexual identity are largely unknown to rural India and
amongst the working classes. Nothing could be further from the truth. While they
may not use the words “homosexuality,” “queer,” “lesbian,” “gay” or any other term
which populates the lexicon of English-speaking persons, they enter into unions
with persons of the same sex as them or with gender queer persons; these unions
are often long-lasting, and the couple performs a marriage ceremony. The
incidence of queerness amongst the rural and working-class communities has
been documented in academic scholarship as well as newspaper reports. In the
absence of evidence aliunde, the details narrated in newspaper reports are not
facts which are proved in terms of the Indian Evidence Act 1872. 83 However, in
cases (such as the present one) which require this Court to examine social
phenomena and their incidence, newspaper reports serve as a useful tool in the
exercise of illuminating social realities.
83 Laxmi Raj Shetty v. State of T.N., (1988) 3 SCC 319
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86. This Court need look no further than the petitioners in this case to illustrate
the point that queerness is neither urban nor elite:
a. One of the petitioners grew up in Durgapur, West Bengal and Delhi and states
that she came to terms with her sexuality when she was an adult. Another
petitioner in the same case grew up in Varanasi, Uttar Pradesh and states
that she knew that she was a lesbian from a young age;
b. One of the petitioners hails from Muktsar, Punjab and happens to be OBC.
Another petitioner in the same case happens to be Dalit. They come from
working class backgrounds;
c. Another petitioner was born in Mumbai to Catholic parents. She attempted to
die by suicide and later had to beg on the streets in order to survive;
d. Some petitioners before this Court are transgender persons and activists.
One of them is a public personality – Akkai Padmashali. She hails from a non-
English speaking, working class background. At a young age, she left home.
She worked as an assistant in a shop selling ceramics but quit because she
unable to hide her true gender identity. Circumstance forced her to become a
sex worker to sustain herself. Later, she was awarded the Karnataka
Rajyotsava Award, Karnataka’s second highest civilian award, for her
contribution to social service.
e. Yet another petitioner who is a transgender person was born in a family of
farmers who grew coconuts and betel leaves. She later worked in a factory.
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In her case, too, circumstance forced her to become a sex worker. She is now
a social activist; and
f. One of the petitioners is a lesbian who lives in Vadodara, Gujarat.
87. Ruth Vanita, an academician, studied the history of queer marriage in India
in her scholarly works. She narrates that she married a Jewish woman in 2000 with
both Hindu and Jewish ceremonies. 84 Her book titled Love’s Rite: Same-Sex
Marriage in India and the West 85 records numerous instances of queer unions and
partnerships in India:
a. Two young women who were classmates fell in love. One of them underwent
a sex reassignment surgery in 1989. The two then married each other but one
of their fathers (a wireless operator) opposed their union. He filed a complaint
stating that the partner of his child had abducted her. When the young woman
was produced in court, she stated that she wished to live with her husband.
She was then released and the couple proceeded to live together;
b. In 1993, two women in Faridabad married each other in a Banke Bihari
temple, with a priest officiating;
c. Two men, one Indian and the other American, married according to Hindu
rites in a ceremony in New Delhi in 1993;
84 Ruth Vanita, ‘’Wedding of Two Souls”: Same-Sex Marriage and Hindu Traditions’ 2004 Journal of Feminist
Studies in Religion, Vol 20(2)
85 Ruth Vanita, Love’s Rite: Same-Sex Marriage in India and the West (Palgrave Macmillan, 2005)
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d. In 2004, a twenty-four year old Dalit woman and a twenty-two year old Jat
woman travelled to Delhi and performed the rites of marriage in a temple.
Their families opposed the union;
e. Two young women, whose parents were construction workers in Bhopal,
Madhya Pradesh, lived in a slum. One of them was employed as a peon in a
school and the other was unemployed. They ran away in 2004 and are
reported to have told the police that they would live together regardless of any
attempts to separate them;
f. Also in 2004, a twenty-one year old Christian woman and a twenty-three year
old Hindu woman from a southern state in India declared their life-long
commitment to one another after a tabloid alleged that they were lesbians;
g. Two young Muslim men (one aged twenty-two and the other aged twenty-
eight) married in Ghaziabad, Uttar Pradesh. Their friends and family
physically assaulted them for marrying but it was reported that they continued
to intend to live together; and
h. Two nurses in Patel Nagar, Delhi met as students, fell in love, declared that
they were life partners, and decided to live together. At the time the book was
written, they had shared a home for fifteen years. Their neighbours were
aware of their relationship and were unfazed by it.
88. In addition, other sources record varied instances of persons entering into
atypical unions or expressing their homosexuality or gender identity:
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a. Two women who happened to be Adivasi married according to the customs
of their tribe, in a small village in Koraput district, Orissa; 86
b. A woman who was the daughter of a government school teacher and a
woman whose father was a labourer garlanded each other in Hamirpur
district, Uttar Pradesh and sought to register their marriage at the local sub-
registrar’s office. They each divorced their husbands before entering into this
union; 87
c. Two women from Kanpur travelled to Delhi to marry each other;88 and
d. Young, gay men in a small town called Barasat in West Bengal expressed
their desire to be a part of the queer community. One of them worked in a
clerical job. 89
89. The AIDS Bhedbhav Virodhi Andolan (the AIDS Anti-Discrimination
Movement) released a citizen’s report on the status of homosexuality in India, titled
‘Less Than Gay’ in 1991. 90 The report discusses some of the arguments which
were put forth more than three decades ago. In its attempt to address whether
homosexuality is a ‘western’ concept or is restricted to the socioeconomically
privileged classes, it asserts that the queer community is not a “coherent, easily
definable group.”91 The report details the various lived experiences of gay men and
lesbian women, information regarding which was collected by interviewing them. It
86 Satyanarayan Pattnaik, ‘Two Orissa girls defy norms, get married’ (Times of India, 5 November 2006)
87 India Today ‘UP: In love for 7 years, two women divorce husbands to marry each other’ (India Today, 1 January
2019)
88 Deccan Herald ‘Two girls from Kanpur elope, 'marry' each other in Delhi’ (Deccan Herald, 19 September 2015)
89 Paul Boyce and Rohit K Dasgupta, ‘Utopia or Elsewhere: Queer Modernities in Small Town West Bengal’ in
Tereza Kuldova and Mathew A Varghese (eds.), Urban Utopias (Palgrave Macmillan, 2017)
90 AIDS Bhedbhav Virodhi Andolan, ‘Less Than Gay’ (1991)
91 ibid
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tells the stories of a lesbian hostel warden, a gay teacher at a government
polytechnic college in Madhya Pradesh, an auto-rickshaw driver in Pune, two male
municipal sweepers in Mumbai who lived together and loved each other, and a gay
man from a slum in Delhi. 92
90. Ruth Vanita also documents attempted suicides and suicides arising from
the difficulties faced by persons in queer relationships: 93
a. In 1980, Jyotsna and Jayshree died by suicide after they jumped in front of a
train in Gujarat. In a letter they left behind, they explained that they chose to
die because they could not endure having to live apart after their marriages
to men;
b. Gita Darji and Kishori Shah died by hanging in a village in Gujarat, in 1988.
They were nurses and worked in a hospital; and
c. In January 2000, two young women named Bindu and Rajni were stopped
from eloping. A few days later, they jumped into a granite quarry in Kerala
and died. They each left behind notes to their families in which they explained
that they wished to die because it was impossible for them to live together.
91. In Loving Women: Being Lesbian in Unprivileged India, 94 Maya Sharma
gives an account of various persons (most of whom are women) in same-sex or
queer relationships. The book was written after detailed interviews with its subjects,
92 ibid
93 Vanita (n 85)
94 Maya Sharma, Loving Women: Being Lesbian in Unprivileged India (Yoda Press, 2006)
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and focuses on working class persons. The author explains that one of the
purposes of the book was to:
“… dispel the myth that lesbians in India were all urban,
Westernised and came from the upper and middle classes.”
The author also highlights that public discourse has not created space for the
voices and experiences of persons from the LGBTQ community who also belong
to marginalized communities:
“… the lives of most of our subjects are equally distant and
alienated from upperclass, urban Indian as well as all Western
representations of homosexuality, and their personal
struggles, which cannot be separated from their
socioeconomic struggles and traditional contexts, are largely
unmirrored and therefore remain largely unknown.”
The book variously gives accounts of women in queer relationships from different
religions and communities, hailing from different parts of the country. They or their
family members worked as domestic workers, factory workers, construction
labourers, and Home Guards, amongst other professions.
92. The discussion in this segment has not scratched the surface of the rich
history of the lives of LGBTQ persons in India, which continue into the present. Yet,
even the limited exploration of the literature and reportage on the subject makes it
abundantly clear that homosexuality or queerness is not solely an urban concept,
nor is it restricted to the upper classes or privileged communities. The discussion
in the preceding paragraphs reveals the diversity of the queer population. People
may be queer regardless of whether they are from villages, small towns, or semi-
urban and urban spaces. Similarly, they may be queer regardless of their caste
and economic location. It is not just the English-speaking man with a white-collar
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job who lives in a metropolitan city and is otherwise affluent who can lay claim to
being queer but also (and equally) the woman who works in a farm in an agricultural
community. Persons may or may not identify with the labels ‘queer,’ ‘gay,’ ‘lesbian,’
‘trans,’ etc. either because they speak languages which are not English or for other
reasons, but the fact remains that many Indians are gender queer or enter into
relationships with others of the same sex. In the words of a person (assigned
female at birth) who worked at a factory in Ajmer:
“You ask if I have heard the word “lesbian”. No, I have not
heard it. … I consider myself a male. I am attracted to women.
Why create categories, such deep differences between male
and female? Only our bodies make us different. We are all
human beings, aren't we? … When a human being is born, he
does not know anything. He is told, “These are your parents,
sisters, father and brothers”. Similarly we are told, “You are
boys, and you are girls”. But I say I am a man. I choose to be
one. Despite our physical differences, we can be who we want
to be and do what we want to do. … But the final analysis, we
are all the same, we are all human beings, we are all equal,
regardless of what kind of bodies we have. This common
factor should be considered, not the ways in which we are
different.” 95
93. To imagine queer persons as existing only in urban and affluent spaces is
to erase them even as they exist in other parts of the country. It would also be a
mistake to conflate the ‘urban’ with the ‘elite.’ This renders invisible large segments
of the population who live in urban spaces but are poor or otherwise marginalized.
Urban centres are themselves geographically and socially divided along the lines
of class, religion, and caste and not all those who live in cities can be termed elite
merely by virtue of their residence in cities.
95 ibid
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94. Finally, it is essential to recognize that expressions of queerness may be
more visible in urban centres for a variety of reasons. For one, cities may afford
their inhabitants a degree of anonymity, which permit them to live their true lives or
express themselves freely. This may not always be possible in smaller towns or
villages, where the families or communities of queer persons may subject them to
censure and disapprobation, or worse.96 The experiences of queer persons may
also be more visible in urban spaces because such persons have greater access
to the various resources required to make one’s voice heard. This only means that
the marginalized are yet to be heard when they speak and not that they do not
exist. This is not to say that society does not inflict violence upon the LGBTQ
community in cities but only to indicate potential reasons for their increased
visibility in cities. In conclusion, queerness is not urban or elite. Persons of any
geographic location or background may be queer.
c. The rise of Victorian morality in colonial India and the reasons for the
re-assertion of the queer identity
95. In pre-colonial times, the Indian subcontinent was home to a diverse
population with its own, unique understanding of sexuality, companionship,
morality and love. Stories, history, myths, and cultural practices in India indicate
that what we now term ‘queerness’ was present in pre-colonial India. It would not
be a faithful description of the times to say that queerness was “accepted” by the
populace. Rather, society did not often view (many manifestations of) the queer
96 For instance, many transmen migrate from villages to metropolitan cities to escape violence and discrimination.
Agaja Puthan Purayil, ‘“Families We Choose”: Kinship Patterns among Migrant Transmen in Bangalore, India’ in
Douglas A Vakoch (ed.), Transgender India: Understanding Third Gender Identities and Experiences (Springer
2022)
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identity as something that required acceptance to begin with because it formed a
part of ordinary, day-to-day life, similar to the heterosexual or cisgender identities.
This was true for many parts of the country at many points of time, though perhaps
not everywhere and at all times. This is not to suggest that society did not inflict
any violence upon members of the LBGTQ community in pre-colonial times.
Rather, it is to highlight that current beliefs, attitudes, and practices which are
hostile to the LGBTQ community are not necessarily natural successors of the
past.
96. The native way of life gradually changed with the entry of the British, who
brought with them their own sense of morality. It was not their morality alone that
they brought with them but also their laws. This Court discussed the legal legacy
of the colonizers at length in National Legal Services Authority (supra) and
Navtej Singh Johar (supra). To recapitulate, Section 377 of the IPC inter alia
criminalized queer sexual acts and in so doing, imposed the morality of the British
on the Indian cultural landscape. The British also enacted the Criminal Tribes Act
1871 97 to provide for the “registration, surveillance and control of certain criminal
tribes and eunuchs.” 98 It permitted the government to declare a group of persons
a “criminal tribe” if it was of the opinion that the group was “addicted to the
systematic commission of non-bailable offences.” 99 Part II of the Criminal Tribes
Act regulated transgender persons (which it referred to as ‘eunuchs’) and subjected
them to enormous indignity inter alia by permitting the government to medically
examine them, providing for harsh penalties if they dressed “like a woman” or
97 “Criminal Tribes Act”
98 Preamble, Criminal Tribes Act
99 Section 2, Criminal Tribes Act
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danced or played music, preventing them from making gifts, and rendering their
wills invalid. Although the Criminal Tribes Act was repealed by the government
after independence, its underlying prejudices seem to continue in various central
and state enactments on ‘habitual offenders.’
97. The criminalization of the LGBTQ community and their resultant prosecution
and conviction under these laws 100 coupled with the violence enabled by these
laws drove large sections of the community underground and into the proverbial
closet. Society stigmatized any sexual orientation which was not heterosexual and
any gender identity which was not cisgender. Persons with an atypical gender
identity and / or sexual orientation were therefore compelled to conceal their true
selves from the world. Their presence in the public sphere gradually shrunk even
as homophobia and transphobia flourished. Despite their alienation from
mainstream society, many queer persons continued to live their lives in ways that
were visible to the public eye. Indeed, many of them (such as hijras) often did not
have a choice but to do so. Others expressed their sexual orientation only in the
comfort of their homes, in the presence of their families and friends. Yet others led
double lives – they pretended to be heterosexual in public and while with their
families and made their sexual orientation known to a select few persons, who
were often themselves of an atypical sexual orientation. Some people entered into
‘lavender marriages’ or ‘front marriages’ which are marriages of convenience
meant to conceal the sexual orientation of one or both partners.
100 See, for instance, Queen Empress v. Khairati, ILR (1884) 6 All 204; (Meharban) Nowshirwan Irani v. Emperor,
AIR 1934 Sind. 206; D P Minwalla v. Emperor, AIR 1935 Sind. 78.
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98. It is evident that it is not queerness which is of foreign origin but that many
shades of prejudice in India are remnants of a colonial past. Colonial laws and
convictions engendered discriminatory attitudes which continue into the present.
Those who suggest that queerness is borrowed from foreign soil point to the
relatively recent increase in the expression of queer identities as evidence of the
fact that queerness is ‘new,’ ‘modern,’ or ‘borrowed.’ Persons who champion this
view overlook two vital details. The first is that this recent visibility of queerness is
not an assertion of an entirely novel identity but the reassertion of an age-old one.
The second factor is that establishment of a democratic nation-state and the
concomitant nurturing of democratic systems and values over six decades has
enabled more queer persons to exercise their inherent rights. An environment has
been fostered which is conducive to queer persons expressing themselves without
the fear of opprobrium. This Court also recognizes that queer persons have
themselves been crucial in the project of fostering such an environment. The
constitutional guarantees of liberty and equality have gradually been made
available to an increasing number of people. This seems to be true across the
world – the global turn towards democracy has created the conditions for the
empowerment of queer people everywhere. Progress has perhaps been
inconsistent, non-linear, and at a less than ideal pace but progress there has been.
We must recognize the vital role of Indian society in contributing to the evolving
social mores. The evolution may at times seem imperceptible, but surely it is.
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d. Who is an Indian and what practices are Indian?
99. The tenor of the arguments put forth by some of the respondents implied
that a union between two persons of the same sex is not Indian. To determine
whether this contention is correct, it is necessary to query when something or
someone is ‘Indian.’ This question is all the more important in a country as diverse
as ours, with twenty-eight States, eight Union Territories, a population of more than
one billion persons, twenty-two languages recognized by the Constitution and
scores more which are spoken by its people, at least eight religions, tribal and non-
tribal populations, and varying cultures which are sometimes at odds with one
another.
A thing, an occurrence, or a practice is ‘Indian’ when it is present in India, takes
place here, or is practised by Indian citizens. Something which is Indian could be
present from time immemorial or it could be a recent development. Regardless,
this is not a game of numbers. The constitutional guarantee certainly does not fade
based on the level of acceptability that a particular practice has achieved. Sexual
and gender minorities are as Indian as their fellow citizens who are cisgender and
heterosexual.
iii. Understanding the institution of marriage
a. There is no universal conception of marriage
100. There is no universal definition of marriage. Marriage is understood
differently in law, in religion, and in culture. Some religions consider marriage a
sacrament while others consider it a contract. The law defines the conditions for a
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valid marriage, such as the minimum age required of a party to the marriage,
whether both parties have consented to the marriage, or whether the parties are
within the degrees of prohibited relationship. A marriage is valid in the eyes of the
law as long as the preconditions in the concerned law(s) are satisfied. A
precondition is different from a feature or characteristic in that the former is a
prerequisite to a valid marriage whereas the latter is not. The law provides
remedies which either party may avail of in the presence or absence of certain
features or characteristics. For example, Section 27 of the SMA provides that a
party to a marriage may present a petition for divorce on the ground that the other
party is undergoing a sentence of imprisonment for seven years or more for an
offence as defined in the IPC. However, it does not automatically render a marriage
void if one of the parties is imprisoned.
101. Once a couple marries, it is left to them to give meaning ang content to their
relationship. It is their prerogative to determine the characteristics of their marriage
and give meaning to their relationship. These aspects of a marriage vary with each
relationship, and it is impossible for this Court to authoritatively state that a
particular idea of marriage is the only valid understanding of marriage. This being
the case, any attempt to formulate a general and universally applicable definition
of marriage is fraught with difficulty. With this qualification, this Court will list some
features of marriage that are considered its core components.
102. Marriage is a voluntary union – of the mind, the body, and the soul. Marriage
signifies a deep and abiding commitment to one another and a devotion to the
relationship. When two people marry, they intend to be in a life-long relationship.
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Both the parties to the marriage provide emotional, financial, and spiritual support
to the other. Each is an intellectual partner of the other, as also a friend. Love,
respect and companionship are said to be the hallmarks of a successful marriage.
Marriage is a gateway into the creation of a family through childbearing and
childrearing, although it is not a precondition to the creation or existence of a family.
The sole purpose of marriage is not to facilitate sexual relations or procreation,
although that may be one of the main motivations for entering into a marriage.
Marriage has emotional and associational components to it, which cannot be
relegated to the background even as the sexual component is foregrounded.
Important as they are, sexual relations and procreation alone are not the exclusive
foundation for marriage. Although the aspects of marriage discussed in this
paragraph are considered to be core components of marriage, the existence of a
valid marriage (by legal, religious, or cultural definitions) is not predicated upon the
existence of any of these elements. This may be due to choice or circumstance or
even some combination of the two.
103. A married couple may not have biological children because of their age,
problems with fertility, or simply because they choose not to. Many couples who
choose to have children may do so through assisted reproductive technologies,
surrogacy, adoption or other methods which are not traditional. Many married
couples may choose not to engage in sexual relations for various reasons. In some
marriages, the couple may not reside in the same home or even city, temporarily
or permanently. The emotional, financial, or spiritual contribution to a marriage may
vary with each couple. While the law identifies certain conduct or behaviour as
grounds for divorce they do not render a marriage void in and of themselves. The
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marriage continues to be a marriage, even if it is atypical or runs contrary to the
notion of an ‘ideal marriage’ that a person may have. This is not only true for the
legal conception of marriage, but also of the cultural and social conceptions.
Society continues to consider a marriage to be a marriage even if, say, a married
couple decides to live apart because they work in different cities or countries or if
they do not have children. This is equally true of the other facets of marriage
discussed in this paragraph. The exercise of defining the content of the institution
of marriage as well as delineating its purpose is a subjective exercise undertaken
by the couple in question.
104. The respondents suggested that an ‘ideal marriage’ has many or all of the
components discussed in the preceding paragraphs. This argument acknowledges
that many of these components are not necessarily present in the institution of
marriage but places them in the realm of normative or aspirational values. In other
words, the argument is that marriages ought to fit with these components even if a
given marriage does not fit with them. The answer to this argument is
straightforward – there is no legal basis to elevate these personals ideals to the
status of normative requirements. To the contrary, every effort must be made to
practice and inculcate constitutional ideas – the ideals of human dignity, liberty,
equality, and fraternity – in our everyday lives. These constitutional ideals demand
that we respect the autonomy and dignity of each person. We must respect their
decisions and choices. It is only when a particular decision or action is contrary to
the law or an affront to constitutional values that this Court may step in. In all other
instances, citizens are empowered to define the content of their lives and find
meaning in their relationships.
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105. Different religions may have different understandings of marriage, for
instance, whether marriage is a sacrament or a contract. There may be diverse
social constructs of marriage within a religious grouping. Similarly, there may be
different conceptions of marriage within a particular community. This is best
understood with the aid of an example. Section 5(iv) of the HMA stipulates that a
marriage may be solemnised between two persons if they are not within the
degrees of prohibited relationship, unless a custom or usage governing the parties
permits their marriage. One of the degrees of prohibited relationship is an uncle
and his niece. 101 In many communities, an uncle cannot marry his niece because
the community does not have a custom or usage which permits such a marriage.
Yet, in many other communities such a marriage is customary and therefore
permitted in terms of the HMA. The customs of many tribes of the country similarly
permit an uncle to marry his niece. Many tribal communities are governed by their
own customs and usages. Such marriages are valid and recognised by tribal
customs although they are not recognised by the law governing other communities
in the country. The solemnisation of a marriage, too, takes different forms in
different communities. What may be customary, and therefore not only accepted
but encouraged in a particular religion or community may not have a parallel in
another religion or community.
106. While each individual is entitled to their own conception of marriage, a
universal conception of marriage, its purpose, and content would be difficult to
encapsulate in an exhaustive enumeration. Consequently, the argument advanced
101 Section 3(g)(iv), HMA
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by the respondents that the very conception of marriage does not permit queer
individuals to marry cannot be accepted. Each religion, each community, each
couple defines the institution of marriage for itself. The queer community is just as
much a community as any other, though perhaps not in the traditional sense in
which the term is used with respect to customs which govern marriage.
107. There is no gainsaying the fact that procreation and the human desire to
have a family constitute significant characteristics of the institution of marriage. Yet,
even heterosexual couples may find themselves unable or unwilling to procreate.
Age, health and a variety of circumstances may bear on the decision of a
heterosexual couple to bear or not to bear children. The inability of queer couples
to procreate does not act as a barrier to the entry of queer persons to the institution
of marriage just as it does not prevent heterosexual couples who are unable or
choose not to procreate. Viewing marriage solely through the lens of sexual
relations or procreation is a disservice to married couples everywhere including
heterosexual couples because it renders invisible the myriad other aspects of a
marriage as an emotional union. It relegates the aspects of companionship and
love in a marriage to an inferior status. Such a conception of marriage is narrow
and factually incorrect.
b. The conception of marriage is not static
108. The understanding of marriage – socially, culturally, and legally – has
undergone a sea change over time. Some changes which are specific to India are
discussed in this segment. This segment is not an exhaustive discussion of the
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changes to the institution of marriage in India. It illustrates some changes in service
of the point that the conception of marriage is not static.
I. Sati
109. Although far from a universal practice, sati was once permitted and practiced
in India. This abhorrent practice was inextricably intertwined with the institution of
marriage because a widow was either tied to the funeral pyre of her deceased
husband or pressed upon to jump into it. Various rules and regulations restricted
and later, barred the practice in the colonial era. In modern day India, the
Commission of Sati (Prevention) Act 1987 criminalizes attempts to commit sati, the
abetment of sati, as well as its glorification.
II. Widow remarriage
110. In accordance with long-standing custom, women (mostly from the dominant
castes) were not permitted to remarry if their husbands died. In many communities,
the heads of widows were shaved and they were prohibited from wearing jewellery
or colourful clothes. This was considered a ‘living death.’ Many (including Mahatma
Jyotirao Phule, the Brahmo Samaj, Ishwar Chandra Vidyasagar, and Tarabai
Shinde) attempted to reform the institution of marriage to permit widows to remarry.
Civil society offered tremendous resistance to their attempts at reform. 102
Ultimately, the Hindu Widows’ Remarriage Act 1856 was enacted, permitting
widows to remarry.
102Rosalind O’Hanlon, Issues of Widowhood in Colonial Western India (Institute of Commonwealth Studies,
University of London, 1989)
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III. Child marriage and the age of consent
111. A discussion of the history of marriage in India would be incomplete without
reference to child marriage and the legal age of consent. Child marriage was
widespread in most religions and communities. The age of consent for girls was
fixed at ten years in 1860. In 1890, a thirty-five year old man called Hari Mohan
Maity caused the death of his ten year old wife Phulmoni Das (also known as
Phulomonee Das) through violent sexual intercourse with her. While this would be
considered rape and / or aggravated penetrative sexual assault of a child by
prevailing legal standards, the concerned court ruled that Hari Mohan Maity had a
legal right to engage in sexual relations with Phulmoni Das because she was above
the age of consent at the time. 103 The age of consent for girls was then raised to
twelve.
112. Decades later, the Child Marriage Restraint Act 1929 raised the minimum
age of marriage for girls from twelve to fourteen. In 1949, the criminal law of the
country stipulated that the age of consent for girls was fifteen years. The HMA set
the minimum age of marriage at fifteen for girls and eighteen for boys. In 1978, the
HMA was amended to raise the minimum age of marriage to eighteen for girls and
twenty-one for boys. The Prohibition of Child Marriage Act 2006 provided that child
marriages would be voidable at the option of the contracting party who was a child
at the time of the marriage. Further, this statute criminalizes the act of performing,
conducting, directing, abetting, promoting or permitting a child marriage.
103 Flavia Agnes ‘Controversy over Age of Consent’ (2013) EPW Vol 48(29)
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113. The Protection of Children from Sexual Offences Act 2012 104 was enacted
about a decade ago. It is a child-specific legislation which inter alia criminalizes
sexual abuse in its various forms. A “child” is defined as any person below the age
of eighteen years. In Independent Thought v. Union of India,105 this Court was
confronted with the inconsistency between the POCSO Act which criminalized
sexual relations with a child and Exception 2 to Section 375 of the IPC which
provided that sexual intercourse by a man with his wife was not rape if the wife was
above fifteen years of age. As a consequence of this inconsistency, a person could
have been guilty under the POCSO Act but not under Section 375 of the IPC. This
Court held that Exception 2 was violative of Articles 14, 15 and 21 of the
Constitution and was an affront to constitutional morality. The Court read down
Exception 2 as exempting a man from the offence of rape if his wife was above the
age of eighteen. Currently, it is a punishable offence for a man to have sexual
intercourse with a child, regardless of whether that child is his wife. It is evident
that the law governing marriage has come a long way from Phulmoni Das’ time.
IV. Other violence in marriage
114. Acts which were once considered the norm in a marriage are no longer
countenanced by the law. The giving and taking of dowry, which was and continues
to be prevalent in most communities, was criminalised by the enactment of the
Dowry Prohibition Act 1961. Prior to its enactment, there was no penalty in law for
demanding, giving, or accepting dowry. The family of the bride was often expected
to pay large sums of money or present “gift” items of value to the groom or his
104 “POCSO Act”
105 (2017) 10 SCC 800
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family, as a condition of the marriage. The maternal families of innumerable women
are harassed and violence is inflicted upon them, in relation to demands for dowry.
Parliament inserted Section 498-A of the IPC in 1983. Section 498-A criminalizes
the act of a husband or his relative subjecting her to cruelty, as defined in the
section. In many cases, the matrimonial families (the husband, the mother-in-law,
the father-in-law, and other relatives) murdered the woman because of what they
viewed as insufficient dowry or unmet demands for dowry. This led to Parliament
amending the IPC in 1986 to include Section 304-B which criminalises ‘dowry
death.’
115. These provisions of law did not, however, adequately account for gender-
based violence in a marriage which are unconnected to dowry. Domestic violence
was (and continues to be) prevalent. About two decades ago, the Protection of
Women from Domestic Violence Act 2005 was enacted to protect the rights of
women who were survivors or victims of domestic violence, either by their
husbands or the relatives of their husbands. Prior to the enactment of the law,
intimate partner violence which women are generally subject to was not
criminalized.
V. Inter-caste and interfaith marriage
116. Inter-caste and interfaith marriages were uncommon in the colonial era and
established customs or usages did not govern such marriages. Then, as now,
society subjected those who entered into inter-caste and interfaith marriages to
discrimination and violence. There was initially no legal framework in place which
governed such marriages. The Special Marriage Act 1872 was enacted to enable
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the solemnisation of marriages independent of personal law. If two people
belonging to different religions wished to marry, they were each required to
renounce their respective religion in order to avail of its provisions. The law at the
time did not supply a framework in terms of which two persons belonging to
different religions could retain their association or spiritual connection to their
respective religions and still marry one another.
117. Parliament was conscious of the limiting and restrictive character of the
Special Marriage Act 1872 and enacted the SMA in 1954, which was a more
permissive legislation in that any two persons could marry, without having to
repudiate their respective religions. By stipulating that “a marriage between any
two persons may be solemnized under this Act,” 106 the SMA also set out a
mechanism for inter-caste marriages to be solemnized independent of personal
law.
118. The families or relatives of couples who entered into inter-caste or interfaith
marriages would frequently inflict violence upon them, even to the extent of brutally
murdering them. Their communities would either ordain or participate in these
atrocities. Such murders are colloquially referred to as “honour killings” and are
more accurately termed as caste-based murders. It is a most unfortunate truth that
this culture of violence persists to date. Couples who face this opprobrium have
knocked on the doors of this Court inter alia seeking protection from their families
and others who oppose their relationship 107 and this Court has otherwise been
106 Section 4, SMA
107 See, for instance, Lata Singh v. State of U.P., (2006) 5 SCC 475.
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seized of cases arising from violence in this context. 108 In Shakti Vahini v. Union
of India, 109 this Court took note of the violence against couples in inter-caste and
interfaith marriages. It directed the state machinery to take preventive as well as
remedial measures to protect such couples who wished to marry or who were
recently married.
119. It is beyond dispute that couples in inter-caste and interfaith relationships
have historically been forced to contend with and continue to contend with
enormous difficulty while solemnizing their unions. As evident from the discussion
in the preceding paragraph, large sections of society were and are fiercely opposed
to such marriages. The opposition stems, at least in part, from a belief that a
marriage ought to consist of two individuals from the same religion or caste.
Parliament chose to enact the SMA despite the opposition to atypical marriages
and has not chosen to repeal the SMA or otherwise exclude the celebration of inter-
caste marriages under personal laws despite continuing hostility from the
communities of such couples. Parliament has presumably done so because it is
cognizant of the fact that the exercise of fundamental rights is not contingent upon
the approval of the community. Similarly, this Court has carried out the
constitutional mandate by protecting the rights of individuals and couples in the
face of considerable opposition from their families. In a democracy, certain rights
inhere in all individuals. If the exercise of rights was contingent upon everyone else
or, at least a substantial portion of the community approving of such exercise, we
would be doing a disservice to a constitutional democracy. The Constitution does
108 See, for instance, Gang-Rape Ordered by Village Kangaroo Court in W.B., In re, (2014) 4 SCC 786; Vikas
Yadav v. State of U.P., (2016) 9 SCC 541.
109 (2018) 7 SCC 192
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not require individuals to first convince others of the legitimacy of the exercise of
constitutional rights before they exercise them.
VI. Divorce
120. Section 10 of the Indian Divorce Act 1869, which is applicable to Christians,
previously permitted the husband to file a petition for divorce on the ground that his
wife was guilty of adultery. However, the wife was permitted to file a petition for
divorce on the ground that her husband was guilty of adultery only in conjunction
with certain other grounds (such as conversion to another religion or bigamy). In
Mary Sonia Zachariah v. Union of India, 110 the Kerala High Court inter alia struck
down a part of Section 10 and permitted Christian women to seek divorce on the
ground of adultery alone. Parliament amended the Indian Divorce Act 1869 in 2001
by substituting Section 10 with a provision that made various grounds of divorce
(including adultery) available to both the husband and the wife, equally. 111 It also
introduced Section 10A, which permitted Christian marriages to be dissolved by
mutual consent, for the first time.
121. In terms of Hindu customary law, certain communities permitted divorce
whereas others did not. The HMA extended the right of divorce to all Hindus when
it was enacted in 1955. In 1976, Section 13B was introduced in the HMA, permitting
Hindus to dissolve their marriage by mutual consent, for the first time. In Shilpa
Sailesh v. Varun Sreenivasan,112 this Court held that it has the authority to grant
divorce when there is a complete and irretrievable breakdown of marriage
110 1995 SCC OnLine Ker 288
111 The wife was permitted an additional ground of divorce, viz “the husband has, since the solemnization of the
marriage, been guilty of rape, sodomy or bestiality.” See Section 10(2), Indian Divorce Act 1869.
112 2023 SCC OnLine SC 544
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notwithstanding the opposition of one of the parties to the marriage to its
dissolution.
122. Islamic customary law permitted divorce in certain situations and through
certain modes. One of the modes was talaq-e-biddat or triple talaq by which the
husband could instantly, irrevocably, and unilaterally divorce his wife. In Shayara
Bano v. Union of India, 113 this Court held that the practice of severing the marital
bond through the mode of talaq-e-biddat was unconstitutional.
VII. The implications of the discussion in this segment
123. Mahatma Jyotirao Phule, Ishwar Chandra Vidyasagar, Pandita Ramabai,
Tarabai Shinde, Raja Ram Mohun Roy and countless others voiced their
opposition (to varying degrees and to varying effects) to one or the other practice
discussed in this segment. Their views were met with fierce opposition on the
ground that the religious and cultural values of the subcontinent did not permit a
departure from tradition. In some cases, the opposing groups relied on scriptures
to justify their respective stances. 114 When Dr. B R Ambedkar introduced the Hindu
Code Bill, many opposed the provision for divorce on the ground that the Hindu
religion did not envisage divorce because it was a sacrament. 115 It is seen that
there are competing understandings of the institution of marriage at every stage of
its evolution. Yet, the understanding which was grounded in justice and the rights
of the people has prevailed. Injustice in the law in relation to the institution of
113 (2017) 9 SCC 1
114 ‘Social Reform’ and the Women’s Quest in Janaki Nair (ed), Women and Law in Colonial India: A social history
(1996)
115 See, for instance, Constituent Assembly of India (Legislative) Debates, Volume II, Speech by Pandit Lakshmi
Kanta Maitra on 1 March 1949; Constituent Assembly of India (Legislative) Debates, Volume VI, Speech by Pandit
Mukut Bihari Lal Bhargava on 12 December 1949
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marriage (in the form of demands for dowry, dowry death, or child sexual abuse)
or as incidental to the institution (as in the case of sati or widow remarriage) is
slowly but surely in the process of being eradicated. While these practices were
once permitted and encouraged, they are currently not only frowned upon but also
criminalized.
124. This walk through history is not an attempt by this Court to take on the mantle
of historians. The discussion demonstrates that the institution of marriage has not
remained static or stagnant. To the contrary, it is change which characterizes the
institution. All social institutions transmogrify with time and marriage is no
exception. From sati and widow remarriage to child marriage and inter-caste or
interfaith marriages, marriage has metamorphosed. The institution as we know it
today would perhaps be unrecognizable to our ancestors from two hundred years
ago. Despite vehement opposition to any departure from practice, the institution of
marriage has changed. This is an incontrovertible truth. Here, it is also important
to take note of the fact that these changes were brought about largely by acts of
Parliament or the legislatures of the states. While the passage of many laws was
preceded by significant social activism, it was the legislature which ultimately
responded to the call for change. Even as Parliament (and in some cases, the
courts) expand the liberties of the people to conduct their lives in a manner they
see fit (in accordance with law), many sections of society remain opposed to these
changes. Regardless of such opposition, the institution of marriage has undergone
a sea change. It is therefore incorrect to characterise marriage as a static, stagnant
or unchanging institution.
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c. The implications of this discussion for the right of queer persons to
marry
125. From the discussion in this segment of the judgment, it is evident that the
institution of marriage is built and re-built by societies, communities, and
individuals. A universal conception of marriage is not present nor is the conception
of marriage static over time. The only facet of marriage which is constant across
religion, community, caste, and region is that the couple is in a legally binding
relationship – one which recognizes an emotional bond of togetherness, loyalty
and commitment - that is recognised by the law. The law recognises the
commitment that the couple has for one another by regulating the institution of
marriage and conferring certain rights and privileges on them.
126. In Shafin Jahan (supra), a three-Judge Bench of this Court held:
“84. … Our choices are respected because they are ours.
Social approval for intimate personal decisions is not the basis
for recognising them. Indeed, the Constitution protects
personal liberty from disapproving audiences.”
127. The consequence of the judgment of this Court in National Legal Services
Authority (supra) and Navtej Singh Johar (supra) is that the members of the
queer community are no longer second-class citizens of our country. Their
individual and group rights are on par with any other citizen of this country. Their
gender identity or sexual orientation cannot be a ground on which they are
discriminated against.
128. Mr. Tushar Mehta, the learned Solicitor General, submitted during the
course of his arguments that two persons from the LGBTQ community have the
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right and the liberty to celebrate their union and label the union with any term they
see fit, including ‘marriage.’ The Union of India does not, however, wish to accord
legal recognition to such ceremonies and unions. If the marriages of queer people
were to be recognized by law enacted by Parliament, it would be the next step in
its progression.
iv. The significance of marriage as a socio-legal institution
129. One of us (DY Chandrachud, J.) in Navtej (supra) held that the members of
the LGBTQIA+ community have a right to navigate public spaces without the
interference of the State. The claim of the petitioners in this case, however, is on a
slightly different footing. The petitioners seek the active involvement of the State in
their relationships through conferring recognition. Through marriage, the State
confers legal recognition to a relationship between two heterosexual persons. By
doing so, it recognises that relationships in the form of marriage are not merely a
lifestyle but an important constituent unit for the sustenance of social life. The State
confers innumerable benefits, both tangible and intangible, to a family unit
constituted by marriage. The petitioners seek that the State grant legal recognition
to the relationship between non-heterosexual persons in the form of marriage
because they are otherwise excluded from the express and implied benefits of
marriage. They claim that non-heterosexual unions have not been able to attain
social sanctity because their relationship is invisible in the eyes of the law.
130. Before we discuss the State’s interest in regulating the personal relationship
between two persons to understand the necessity of its interference in the private
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sphere, it is important to discuss the manner in which the State regulates
marriages.
131. The State: firstly, prescribes conditions with respect to who can enter into a
valid marriage; secondly, regulates the marital relationship during its sustenance;
and thirdly, regulates the repercussions of the breakdown of a relationship of
marriage.
132. The State prescribes various conditions for the solemnization of a valid
marriage which inter alia includes the conditions of consent, a minimum age
requirement, and whether the parties are within the degrees of prohibited
relationship. The law regulates the conduct of the parties to a marriage in
numerous ways. For example, the law penalises the husband and his family
members if they treat the wife cruelly, including demands for dowry. 116 Similarly,
the Protection of Women from Domestic Violence Act 2005 117 penalises persons
for domestic violence in the course of a domestic relationship which has been
defined to include marriage.118 The grounds for divorce prescribed in various
marriage laws also regulate the conduct of parties because their actions during the
sustenance of a marriage may be a ground for the legal dissolution of that
marriage. The valid grounds for divorce include where one of the parties has a
sexual relationship outside of marriage, 119 or has deserted their spouse, 120 or treats
the spouse with cruelty. 121 The State regulates the relationship between the parties
116 Section 498A of IPC
117 “DV Act”
118 Sections 2(f) and 3 of the DV Act,
119 Section 27(1)(a) of the SMA
120 Section 27(1)(b) of the SMA
121 Section 27(1)(d) of the SMA
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after the divorce by prescribing the payment of maintenance. Under the SMA, the
wife can claim alimony or maintenance and under the HMA, both the husband and
the wife can claim maintenance. The above discussion elucidates that the State
plays a crucial role in regulating marriage. Marriage has attained both social and
legal significance because of the active involvement of the State at every stage of
the marital relationship – during entry into it, during its subsistence, and in its
aftermath.
133. Marriage was earlier a purely social institution unregulated by the State.
What prompted the State to regulate personal relationships? There are two
prominent reasons. The first reason was to regulate the social order. The State
regulated social order by firstly, regulating the sexual conduct of persons through
marriage, and secondly, by prescribing a legal mechanism for the devolution of
property based on the legitimacy of the heir.
134. With respect to the first of the reasons, the State used marriage as a tool to
regulate sexual behaviour. 122 The State prescribed social rules through the vehicle
of law by devising marriage as an exclusive relationship. Engaging in sexual
conduct outside of marriage is a ground for divorce under personal marriage laws
and the civil marriage law. It is also crucial to note that impotency and not sterility
is a ground for divorce. 123 Impotency is the inability of a man to engage in sexual
intercourse. On the other hand, sterility is the inability of a man or a woman to
procreate. By prescribing impotency as a ground for declaring a marriage void (and
not sterility), the State emphasised the centrality of sexual relations in a marriage
122 Laurence Drew, Sex, ‘Procreation and the State Interest in Marriage, (2002) Columbia Law Review, Vol. 102(4)
123 Section 27(1)(ii) of the SMA
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as opposed to procreation. In this way, the State governs the conduct of society by
regulating sexual conduct in a marital relationship.
135. Another manner in which the State intended to regulate social order by
regulating marriage is by placing marriage at the centre of property devolutions.
Ownership and control over property was viewed as being important for the
establishment of a just social order. One of the reasons for the establishment of a
social contract for the creation of a State by which individuals gave up their right to
live as unregulated free individuals in exchange of protection of their rights and
freedom is for safeguarding of property rights.
136. There must be rules for the devolution of property to avoid conflicts. These
rules may vary in nature. Societies may establish rules for a common property
system, or private property system, or a mixture of both. These legal rules have
two primary components which concern how the title over the property is secured
and how the title further devolves in case of intestate succession. Legal rules for
the devolution of title are premised on marriage in modern societies.
137. Brian H Bix in the paper “State interest and Marriage” argues that there is
sufficient material to establish that the State regulates marriage to respond to the
special interests of specific social groups. 124 It has been argued that the propertied
classes wanted to reduce any uncertainty about succession, which may have
arisen because of a lack of clarity regarding the line of succession. It has also been
argued that noble families desired to prevent their children’s marriages with
124 Brian H Bix, State Interest and Marriage- The Theoretical perspective, (2003) 32 HOFSTRA L. REV. 93
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partners of lower social status. Irrespective of whether the State regulated marriage
to further entrench the existing social order or to transform the existing social order
based on constitutional values, it is clear that property also plays a prominent role
in the regulation of marriage.
138. The second reason for the State to be involved in the regulation of personal
relationships was to remodel society, premised on the constitutional value of
equality. A constitutional order premised on equality, dignity, and autonomy would
be unworkable if personal relationships which are the building blocks of a just
society are grounded on values that are antithetical to the Constitution. The
Constitution declares that there shall be no discrimination on the grounds of
religion, race, caste, and sex. How would it be a just society if on the one hand the
Constitution declares that there shall be no discrimination, and on the other hand,
inter-faith and inter-caste relationships bear the brunt of a brutal society through
ostracization and “honour” killings or caste-based murders? How just would society
really be if in spite of the constitutional guarantees of equality of women in public
posts and educational institutions, they suffer patriarchal attitudes in the private
sphere?
139. The State regulates marriage to create a space of equal living where neither
caste, religion, and sex prevent any person from forming bonds for eternity nor do
they contribute to the creation of an unequal relationship. The State’s regulation of
marriage recognised that even though a married couple is a ‘unit’ for the purposes
of laws, they still retain their individual identity and are entitled to constitutional
guarantees. For example, one of the parties need not necessarily be at fault for the
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couple to secure divorce. Our laws recognise divorce by mutual consent. They
recognise that the parties to a marriage are in the best position to decide if they
should continue with the marital relationship. Divorce by mutual consent is
grounded on the principle of autonomy. The involvement of the State in the
regulation of marriage opened up the space for inter-caste marriages and inter-
faith marriages, and secured prominent constitutional rights.
140. The regulation by the State and its attempts to create a more equal personal
sphere also contribute towards factual equality where women are empowered to
defy patriarchal notions of gender roles in daily life. The impact of the State’s
involvement in creating a more just personal space by reforming the institution of
marriage on the basis of constitutional ideals can be seen when a wife chooses to
retain her surname after her marriage or where the partners equally contribute
towards raising their child.
141. The State recognised that a Constitution which upholds the values of
freedom, liberty, and equality cannot permit the sustenance of a feudal institution
undermining the rights of marginalised communities. Thus, it is important to view
the involvement of the State in regulating the institution of marriage in terms of its
transformative potential in ensuring equality in the personal sphere and in family
life.
142. Having discussed why and how the State regulates the institution of
marriage, it is important that this Court recognise the effect of such regulation.
Apart from the benefits of the State’s involvement which are recognised above (that
is, in creating a social order in consonance with the principles laid down in the
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Constitution), there are other benefits. These benefits can be segregated into
tangible and intangible benefits.
143. The intangible benefits of marriage are guided by hidden law. Hidden law
comprises of norms and conventions which organize social expectations and
regulate everyday behaviour. 125 The benefits which are conferred by a legal
institution must not be measured solely in terms of the benefits which are conferred
by the law. It must also include the benefits which are conferred by hidden law.
These are benefits which are not traceable to law but which are created by norms.
One such benefit of marriage which is traceable to hidden law is the social validity
and recognition which marriage as an institution confers upon relationships.
144. It is pertinent to note that the State only regulates heterosexual marriages.
The law confers numerous rights and benefits which flow from a marriage but
ignores the existence of any other form of relationship. The invisibilization of
relationships which are not in the form of marriage on the one hand bestows
sanctity and commitment to marriages and on the other hand strengthens the
perception that any other form of relationship is fleeting and non-committal.
145. The DV Act has come the closest to recognising the existence of
relationships in forms other than marriage. The Act defines “domestic relationship”
as a relationship between two persons who live together in a shared household,
when they are related by consanguinity, marriage, or ‘through a relationship in the
nature of marriage. In Indra Sarma v. VKV Sarma 126, the issue before this Court
125 Jonathan Rauch, ‘Conventional Wisdom’, (Reasons, February 2000)
126 (2013) 15 SCC 755
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was whether live-in relationships can be considered to be a relationship in the
nature of marriage. A two-Judge Bench of this Court observed that a relationship
in the nature of marriage is distinct from a marriage. It was further observed that
for a relationship to be considered to be in the nature of marriage, factors such as
the duration of the relationship, whether the couple live in a shared household, the
pooling of resources and financial arrangements such as long-term investment
plans which indicate the existence of a long standing relationship, and domestic
arrangements such as entrusting the responsibility especially on women to run the
household and do household activities, the sexual relationship, procreation,
socialisation in public, and the intention and conduct of the parties must be
considered.
146. The observations of this Court in Indra Sarma (supra) elucidate that a
relationship is in the nature of marriage only when an inference can be drawn from
the surrounding circumstances that it will be a long-lasting relationship. Thus, while
there is a positive presumption that marriages are long-lasting, there is also a
negative inference that all other relationships which are not in the form of marriage
are short-lived.
147. In addition, the observations of this Court in Indra Sarma (supra) indicate
that marriage has always been understood and continues to be understood in
terms of the stereotyped traditional gender roles. The wife is entrusted with the
responsibility of taking care of household chores and the husband is expected to
be the breadwinner of the family. The public-private divide is stark. Women are
relegated to the private sphere where their contribution towards running the
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household is diminished. An inherent feature of the institution of marriage is the
unequal heteronormative setting in which it operates. It is important for us to
observe that the State while recognising the relationship between two heterosexual
individuals in the form of marriage does not recognise or promote the gendered
division of labour in the home. The State by regulating marriage has sought to
redefine heterosexual relationships by emphasising on the autonomy of both
parties.
148. The intangible benefits of marriage extend beyond the conferment of social
recognition to the relationship of the couple. It also confers benefits which cannot
be measured in tangible form to the children born of the marital relationship. The
law confers on children who are born of wedlock with benefits in succession. In
addition, the law’s recognition of the concepts of legitimate and illegitimate children
have social repercussions in that illegitimate children are shunned by the society.
These intangible benefits of marriage indicate that society regards marriage as the
primary and sole unit through which familial relationships can be forged. As
Marshall CJ observed in Goodridge v. Department of Public Health,127 in a very
real sense, there are three partners in a civil marriage: two willing partners and an
approving State.
149. There are numerous tangible benefits conferred by the State which flow from
marriage and touch upon every aspect of life. Tangible benefits conferred by
marriage can be classified into (i) matrimonial and child care related benefits; (ii)
127 798 N.E.2d 941 (Mass. 20003)
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property benefits; (iii) monetary benefits; (iv) evidentiary privilege; (v) civic benefits;
and (vi) miscellaneous benefits.
150. Matrimonial and child care related benefits include the provisions of
permanent alimony and maintenance,128 maintenance if a person with sufficient
means refuses to maintain his wife 129, to adopt a child as a couple 130, and to avail
rights related to surrogacy 131. Property benefits would include securing a share in
case of intestate succession 132. Legislation such as Section 16 of the HMA has
conferred legitimacy on children born from void or voidable marriages with a
consequential right to or in the property of the parents (and not of any other
person). Monetary or financial benefits which flow from marriage include the
provisions to be nominated for the payment of gratuity 133, to receive funeral
expenditure for the deceased spouse, 134 for the payment of medical benefits to the
spouse of the insured person, 135 and to claim provident fund as the dependent of
128 Section 25 of the Hindu Marriage Act 1955; Section 37 of Special Marriage Act 1954 stipulates that the court
can direct the husband to pay maintenance to his wife; Section 40 of the Parsi Marriage and Divorce Act 1936;
Section 37 of the Divorce Act 1869 where the District Court is conferred with the power to secure maintenance to
the wife from the husband.
129 Section 125 of CrPC
130 Section 57 of the Juvenile Justice (Care and Protection of Children) Act 2015 prescribes eligibility criteria for
the adoption of children. The provision stipulates that if a couple wants to adopt, then the consent of both the
spouses are required. However, the sub-section (5) of the provision states that any other criteria specified in the
adoption regulations frame Authority shall be followed. Clause 5(3) of the Adoption Regulations dated 23.9.2022
(G.S.R. 726(E)) notified by the Ministry of Women and Child Development in exercise of powers conferred under
Section 68(c ) read with Section 2(3) of the Juvenile Justice (Care and Protection of Children) Act 2014 prescribes
that a child shall be given in adoption only if they have been in a stable two year marital relationship.
131 Section 2(e) of the Assisted Reproductive Technology (Regulation) Act 2021 defines a commissioning couple
as an infertile married couple who approach an assisted reproductive technology clinic or bank for services; Section
4(c)(II) of the Surrogacy (Regulation) Act 2021 stipulates that the eligibility condition for an intending couple to avail
the services of surrogacy is that the intending couple must be married and between the age of 23 to 50 years in
case of female and 26 to 55 in case of a male.
132 Hindu Succession Act 1956 and the Indian Succession Act 1925.
133 Section 55 of the Code of Social Security 2020 provides that each employee who has completed one year of
service shall nominate from his family for the payment of gratuity. Section 55(3) states that any nomination made
by the employee in favour of a person who is not a member of his family shall be void.
134 Section 32 of the Code of Social Security 2020 stipulates that the eldest surviving member of the family (which
has been defined to include spouse) of an insured person shall receive payment towards the expenditure on the
funeral.
135 Sections 32 and 39 of the Code of Social Security 2020
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a deceased spouse. 136 Additionally, the provisions of the Income Tax Act 1961
provide numerous tax benefits for payments made on behalf of the spouse. For
example, Section 80C of the Income Tax Act 1961 permits deduction of the
insurance premia paid for the spouse’s life insurance policy and Section 80D
permits deduction of expenses towards the premium of spouses health insurance.
151. Evidentiary privilege includes the privilege accorded to communications
during marriage under the Indian Evidence Act 1872 137. Civic benefits include the
provision to apply for citizenship or to be an overseas citizen of India by virtue of
the spouse’s citizenship 138. Miscellaneous benefits include other benefits under
law which cannot be grouped under the above categories which inter alia includes
the recognition of a spouse as a ‘near relative’ for the purpose of the
Transplantation of Human Organs and Tissues Act 1994 139.
152. At this juncture, it is important to recall the submission made by the learned
Solicitor General that even today, as the law exists, there is no prohibition against
two queer persons holding a marriage ceremony. However, they would not be
recognised as married partners by State and non-State entities for the purposes of
the law. The non-recognition of non-heterosexual marriages denies the petitioners
the social and material benefits which flow from marriage which captures the true
essence of marriage. Access to the institution of marriage is crucial to “individual
136 Section 2(c ) of the Provident Funds Act 1925 defines a dependent to include a wife or a husband. Section 3 of
the Act stipulates that the sum standing to the credit of any subscriber shall be paid to any dependent.
137 Section 122 of the Indian Evidence Act 1872 states that no person who is or has been married shall be compelled
to disclose any communication made during marriage.
138 Section 5 of the Citizenship Act 1955 states that citizenship can be acquired through naturalization by a person
who is married to a citizen of India and is ordinarily resident in India for seven years. Section 7A stipulates a foreign
origin person whose spouse is a Indian citizen or overseas citizen of India shall apply for OCI if their marriage is
registered and they have lived in India for a continuous period of two years.
139 Section 2(i) of the Act defines “near relative” to include a spouse.
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self-definition, autonomy, and the pursuit of happiness” 140 because of these
expressive and material benefits which flow from marriage.
v. The nature of fundamental rights: positive and negative postulates
153. Before we embark on an analysis of whether the Constitution recognises the
right to marry, it is imperative that we discuss how the courts recognise
unenumerated rights or derivative rights. The Ninth Amendment to the US
Constitution states that the “enumeration in the Constitution of certain rights shall
not be construed to deny or disparage others retained by the people”. Though the
Indian Constitution does not contain such a provision, it is implied that the rights
enumerated in Part III are not exhaustive. The fundamental rights recognised in
Part III are identified in the level of abstraction- that is, equality, liberty, and
expression. The Constitution does not provide a detailed enumeration of the facets
of each enumerated right. The Courts, while determining the scope of an
enumerated right, lay down its facets and conceptions. For example, Courts have
held that the true essence of the right to equality is not encompassed in formal
equality where all persons are treated alike irrespective of the unequal socio-
economic status but in substantive equality. 141 Similarly, this Court has in
numerous judgments held that the right to life and liberty recognised under Article
21 would be obscure if other crucial facets of liberty are not recognised. It is in this
140 Martha C. Nussbam, A right to marry? (2010) California Law Review Vol 98(3)
141 State of Kerala v. NM Thomas, 1976 SCR (1) 906
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vein that this Court recognised, inter alia, the right to livelihood, 142 the right to
speedy trial, 143 and the right to education. 144
154. Fundamental rights are characterized as positive rights and negative rights.
In fact, some draw a distinction between fundamental rights (Part III) and the
Directive Principles of State Policy (Part IV) by arguing that the former consists of
negative rights and the latter of positive rights. In constitutional theory, negative
rights are understood to involve freedom from governmental action whereas,
positive rights place a duty on the State to provide an individual or a group with
benefits which they would not be able to access by themselves.
155. Indian jurisprudence on the scope of fundamental rights can be divided into
two thematical facets. In the first facet, the distinction between negative rights and
positive rights faded with the harmonious reading of fundamental rights and
Directive Principles of State Policy by the courts. 145 The Courts used the Directive
Principles to inform the scope of fundamental rights. In Unnikrishnan v. State of
Andhra Pradesh 146, the issue before this Court was whether the Constitution
guarantees a fundamental right to education to its citizens. This Court held in the
affirmative and traced the right to Article 21 and the Preamble of the Constitution.
Jeevan Reddy, J. writing for the majority observed that education is of
transcendental importance in the life of an individual without which the objectives
set forth in the Preamble cannot be achieved. It was further emphasised that the
Constitution expressly refers to education in Articles 41, 45, and 46 of the
142 Olega Tellis v. Bombay Municipal Corporation, 1985 SCC (3) 545
143 Hussainara Khatoon v. Home Secretary, (1980) 1 SCC81
144 Unnikrishnan v. State of AP, (1993) 1 SCC 645
145 Also see Mohd. Hanif Qureshi v. State of AP, 1959 SCR 629
146 (1993) 1 SCC 645
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Constitution which indicates the importance conferred to it. However, this Court
limited the scope of the right to education in view of Article 45 which states that the
State shall endeavour to provide free and compulsory education for all children
until they complete the age of fourteen years. Thus, this Court held that the
Constitution guarantees a right to free education for all children until they complete
the age of fourteen years.
156. In the second facet, the Courts read fundamental rights to include both
negative and positive postulates independent of the Directive Principles of State
policy. YV Chandrachud, C.J. writing the opinion for the majority in Minerva Mills
v. Union of India, 147 observed that fundamental rights deal with both negative and
positive postulates. In Indibily Creative Private limited v. Government of West
Bengal 148, one of us (DY Chandrachud, J. as he then was) observed that Article
19 imposes a negative restraint on the State to not interfere with the freedoms of
all citizens and a duty on the State to ensure that conditions for the free and
unrestrained exercise of the freedom are created. In Justice KS Puttaswamy (9J)
(supra), a nine-Judge Bench of this Court held that the Constitution guarantees the
right to privacy. This Court expressly held that the right to privacy includes both
negative and positive postulates. The negative postulate consists of the right to be
left alone and the positive postulate places a duty on the State to adopt measures
for protecting and safeguarding individual privacy. 149
147 AIR 1980 C 1789
148 (2020) 12 SCC 436
149 Plurality opinion authored by Justice DY Chandrachud (paragraph 158)
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157. The second facet on the scope of fundamental rights is now cemented in
Indian constitutional jurisprudence. Fundamental rights consist of both negative
and positive postulates preventing the State from interfering with the rights of the
citizens and creating conditions for the exercise of such rights respectively. This
understanding of fundamental rights is unique to Indian constitutional
jurisprudence. Fundamental rights have been construed in this wide manner by
Indian Courts because of the constitutional conception of the role of the State.
Viewing fundamental rights purely as negative rights runs the risk of undermining
the role of the State.
158. Fundamental rights are not merely a restraint on the power of the State but
provisions which promote and safeguard the interests of the citizens. They require
the State to restrain its exercise of power and create conducive conditions for the
exercise of rights. If such a positive obligation is not read into the State’s power,
then the rights which are guaranteed by the Constitution would become a dead
letter. This is because the question of whether the State is curtailing the rights of
citizens would only arise if the citizens have the capacity and capability to exercise
such rights in the first place.
159. Thus, if the Constitution guarantees a fundamental right to marry then a
corresponding positive obligation is placed on the State to establish the institution
of marriage if the legal regime does not provide for it. This warrants us to inquire if
the institution of marriage is in itself so crucial that it must be elevated to the status
of a fundamental right. As elucidated in the previous section of this judgment,
marriage as an institution has attained social and legal significance because of its
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expressive and material benefits. This Court while determining if the Constitution
guarantees the right to marry must account for these considerations as well.
vi. Approaches to identifying unenumerated rights
160. The courts identify unenumerated rights by tracing them either to specific
provisions of Part III of the Constitution or to the chief values which the Constitution
espouses. The premise of this exercise undertaken by courts is that the rights
guaranteed in Part III of the Constitution can only be effectively secured if certain
other entitlements are safeguarded. That is, the rights guaranteed expressly by the
Constitution would remain parchment rights, if conditions for the effective exercise
of them are not created. To put it differently, rights will only be secured if citizens
possess capabilities to exercise the right.150 In fact, the positive and negative
postulations of fundamental rights arise from this broad understanding of the
purpose served by fundamental rights. In this method of deriving rights, the court
traces unenumerated rights to specific provisions of the Constitution such as liberty
(Article 21) or freedom of expression (Article 19) or equality (Article 14).
161. In the second method used by courts to derive unenumerated rights, rights
are not traced to specific fundamental rights but to the values or the identity of the
Constitution. This method of deriving unenumerated rights attained prominence
after the judgment of this Court in RC Cooper v. Union of India151 which held that
fundamental rights are not water-tight compartments and that the thread of
reasonableness contemplated in Article 14 runs through Article 21 aswell. The
150 Martha C Nussbaum, Capabilities as fundamental entitlements: Sen and Social Justice, (2003) Feminist
Economics 9 (203) 33
151 (1970) 1 SCC 248
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aspirational values of the Indian Constitution reflected in the preamble is to secure
justice, liberty, equality, and fraternity to all its citizens. However, constitutional
identity is not readily borrowed from preambular values. Constitutional identity is
secured by a gradual process which is characterized by a dialogue between the
institutions of governance (such as the legislature, the executive, the courts, and
the statutory commissions) and the public over internal and external
dissonances. 152 There is external dissonance when there is an apparent conflict
between a Constitution’s aspirational ideals and the socio-political reality. 153 It is
characterized by internal dissonance when there is a conflict between the
provisions of the Constitution. The Indian jurisprudence on the equality code is an
apt example of how constitutional identity has evolved through dialogue between
various stakeholders to advance the conception of factual equality. This Court has
been using both the above mentioned approaches to identify unenumerated rights.
For example, this Court in Justice KS Puttaswamy (9J) held that the Constitution
guarantees the right to privacy by using both the specific rights approach and the
identity approach. This Court grounded the right to privacy in the concepts of
liberty, 154 freedom,155 dignity, 156 and the idea of individual self-development which
runs through the provisions of the Constitution. 157
152 Gary Jeffrey Jacobson, Rights and American Constitutional identity, (2011) Vol. 43 (4) 409
153 ibid
154 Opinion of Justice Chelameshwar
155 Opinion of Justice DY Chandrachud
156 Opinion of Justice Bobde
157 Opinions of Justice RF Nariman and Justice Sapre
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vii. The scope of the State’s regulation of the ‘intimate zone’
162. The learned Solicitor General made the following two arguments: (i) Intimate
relationships, whether between homosexual or a heterosexual couples cannot be
subject to State regulation because it falls in the ‘intimate zone of privacy’; (ii) The
State regulates heterosexual marriages only because there is public interest in
sustaining the human population through procreation.
163. For this Court to determine if the State has a duty to confer recognition upon
all relationships, it must firstly delineate the contours of the State’s regulation of
intimate relationships vis-à-vis privacy concerns. The plurality opinion authored by
one of us (Justice D.Y. Chandrachud) in Justice KS Puttaswamy (9J) (supra),
while discussing the scope of the right to privacy, refers to an article titled “A
typology of privacy” 158 which classifies privacy into nine categories.
164. In addition to listing various forms of privacy, the authors have also classified
the forms of privacy based on those which are necessary for the fulfilment of the
freedom to be let alone and the freedom to self-development. The intimate zone of
privacy subsumes spatial privacy (which corresponds to the freedom to let alone)
and decisional privacy (which corresponds to the freedom of self-development).
The formation of human relationships falls within the intimate zone because
relationships are relegated to the sphere of the home or the private zone and they
involve intimate choices.
158 Bert-Jaap Koops et al., “A Typology of Privacy”, (2017) University of Pennsylvania Journal of International Law
(2017), Vol. 38(2) 566
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165. The intimate zone is shielded from State regulation because relationships
operate in a ‘private space’ and decisions taken in a private space in exercise of
an individual’s autonomy (such as the choice of partner, or procreation) are ‘private
activities.’ This Court in Justice KS Puttaswamy (9J) (supra) held that privacy is
intrinsic to the realization of constitutional values and entrenched fundamental
rights. The judgment emphasized the importance of being left alone and the
autonomy of individuals to take crucial decisions affecting their personhood, such
as procreation and abortion. 159
166. At this juncture, it must be noted that the Indian Constitution does not
recognize family or partnerships as a unit for securing rights. For example, the Irish
Constitution recognizes the family as a natural unit of society and a moral institution
possessing inalienable rights. 160 The Constitution by not recognizing the family as
a rights bearing unit has rejected the school of thought where rights of individuals
in a family or partnership are subsumed within the larger unit of the family. The
Constitution does not promote a framework of rights where the rights of a family
are given precedence over individual rights of citizens constituting that family.
167. Relegating actions to the ‘private’ zone has certain shortcomings. The
disadvantage must be understood in consequentialist terms, that is, by identifying
the effect of classifying certain activities as ‘private.’ One of the prominent effects
of classifying actions as ‘private’ is that such actions are protected from regulation
by the State.
159 Paragraphs 90 and 157 and conclusion (F) of Justice DY Chandrachud’s opinion; paragraph 46 of Justice RF
Nariman’s opinion; paragraph 78 of Justice SK Kaul opinion 8
160 Article 41 of the Irish Constitution stipulates that the State pledges to guard with special care the institution of
marriage on which the family is founded.
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168. Depending on how relationships are organized and managed, they can be
“a beacon of freedom, or a prison.”161 While there are relationships which are
characterized by love, mutual-respect, and devotion to one another, certain
relationships are also characterized by the hierarchical power structure in which
they operate. Identities such as caste, religion, gender and sexuality more often
than not contribute towards the unequal power structure in the private sphere. To
recall, in a segment above, we observed that the State’s interest in regulating
relationships in the form of marriage is to democratize the private space by
ensuring that actions in the intimate space are in consonance with constitutional
values. For the reasons in the preceding paragraph, the argument of the learned
Solicitor General that the State regulates relationships in the form of marriage
solely because they result in procreation is erroneous. The State’s interest in
democratizing personal relationships is not specific to the institution of marriage.
The State’s regulation of marriage is merely one of the many ways by which it can
fulfill these State aims. However, it is open to the State to use other forms of
regulation to fulfill the interests identified above. There is public interest in the
State’s regulation of all relationships because relationships involving two persons
may be unequal by their very nature. Scholars have emphasized that the
democratization of personal relationships serves two purposes. First, it contributes
towards eliminating the inequality of the power structure in a relationship thereby
preventing exploitation and subjugation; and second, it contributes towards
161 Tammy R Pettinato, “Transforming Marriage: The Transformation of Intimacy and the Democratizing Potential
of Love” JL & Fam. Stud. 9, 101
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creating a more independent and self-sufficient citizenry which would have the
ability to see alternative viewpoints. 162
169. The withdrawal of the State from the domestic space leaves the
disadvantaged party unprotected since classifying certain actions as being private
has different connotations for those with and without power. In the case of personal
relationships which are characterized by inequality, the actions of the more
powerful person gains immunity from scrutiny and a degree of legitimacy. 163 Thus,
all activities in the ‘private space’ dealing with intimate choices must not readily
and blindly be categorized to be beyond the scope of the State’s regulation. The
State must assess if its interest in democratizing the private space overrides the
interests of privacy in a given situation.
170. The State has identified specific areas in the private sphere where the
interest in democratizing that space overrides the interests of privacy. For example,
the State regulates relationships which are in the nature of marriage through the
DV Act. The preamble to the DV Act provides that the statute was enacted to
protect the rights of women “who are victims of violence of any kind occurring within
a family.” The Act regulates the conduct of persons in a domestic relationship which
has been defined as a relationship between two persons who live together in a
shared household where they are related by marriage, a relationship in the nature
of marriage, adoption, or consanguinity. By criminalizing actions of domestic
violence against women, the State recognizes that there is an unequal power
162 ibid
163Frances Olsen, “Constitutional law: Feminist Critique of the public/private distinction” Vol. 10 (1993),
Constitutional Commentary, p. 319 (1990)
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structure which operates in heterosexual relationships. The State also recognizes
that the party with lesser power and autonomy may be subjected to violence and
suppression and consequently, seeks to democratize the space through
regulation.
171. However, in certain other circumstances, the State and the Courts have
recognized that there is no State interest in regulating the personal space. For
example, this Court has recognized that Article 21 protects a woman’s reproductive
choices which includes whether she wants to terminate her pregnancy.164 The
Medical Termination of Pregnancy Act 1971 recognizes the decisional autonomy
of women over procreation, which is an intimate aspect of their lives. In very narrow
circumstances, the State regulates intimate choices about child birth and
procreation. For example, the Pre-conception and Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection) Act 1994 regulates the intimate zone by
prohibiting sex-selection before and after conception. In this case, the State
recognizes that the interest in preventing female foeticide and infanticide overrides
the privacy interests and decisional autonomy of individuals.
The argument that the State has an interest in regulating heterosexual marriages
only to sustain society through procreation is fallacious because the state does not
impose a compelled choice of procreation on married heterosexual couples.
Moreover, heterosexual couples need not be married to procreate nor is marriage
a criteria for procreation.
164 See Deepak Gulati v. State of Haryana, (2013) 7 SCC 675
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viii. The right to marry
a. Have the courts recognised the right to marry?
172. The petitioners submit that this Court has held that the Constitution
guarantees the right to marry in Shafin Jahan (supra) and Shakti Vahini (supra).
In Shafin Jahan (supra), Ashokan, the father of Akhila alias Hadiya moved a
habeas corpus petition before the High Court of Kerala with the apprehension that
his daughter was likely to be transported out of the country. During the course of
the hearing, the High Court was informed that she had married the petitioner.
However, the High Court allowed the petition and directed that (i) Hadiya shall be
escorted from the hostel in which she was residing to the house of the father; and
(ii) the marriage between Hadiya and Shafin Jahan was void. The High Court
observed that twenty-four year old Hadiya was capable of being exploited and that
the Court is concerned with her welfare in exercising parens patriae jurisdiction.
On appeal, this Court set aside the judgment of the High Court. Dipak Misra, C.J.
writing for the majority observed that Hadiya was entitled to choose a partner of
her choice and curtailing the expression of choice would amount to clipping a
person’s identity. One of us (D.Y. Chandrachud, J. as he then was) authoring the
concurring judgment observed that the High Court’s exercise of jurisdiction to
declare the marriage null and void amounted to judicial overreach. This Court
observed that the choice of a partner, whether within or outside of marriage lies in
the exclusive domain of the individual, and that the State cannot dictate or limit the
freedom to choose a partner. In this context, this Court observed that the right to
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marry a person of one’s choice is integral to Article 21 of the Constitution. The
relevant observations are extracted below:
“84. […] The absolute faith of an individual to choose a life
partner is not in the least affected by matters of faith. The
Constitution guarantees to each individual the right freely to
practise, profess and propogate religion. Choices of faith and
belief as indeed choices in matters of marriage lie within an
areas where individual autonomy is supreme. The law
prescribes conditions for a valid marriage. It provides
remedies when relationships run aground. Neither the
State not the law can dictate a choice of partners or limit
the free ability of every person to decide on these
matters.
86. The right to marry a person of one's choice is integral to
Article 21 of the Constitution. The Constitution guarantees the
right to life. This right cannot be taken away except through a
law which is substantively and procedurally fair, just and
reasonable. Intrinsic to the liberty which the Constitution
guarantees as a fundamental right is the ability of each
individual to take decisions on matters central to the pursuit of
happiness. Matters of belief and faith, including whether to
believe are at the core of constitutional liberty. […] Society has
no role to play in determining our choice of partners.
[…]
88.[…] Intimacies of marriage, including the choices which
individuals make on whether or not to marry and on whom to
marry, lie outside the control of the State. Courts as upholders
of constitutional freedoms must safeguard these freedoms.”
(emphasis supplied)
173. In Shakti Vahini (supra), proceedings under Article 32 of the Constitution
were instituted seeking directions (i) to State Governments and the Central
Government to initiate steps to combat “honour crimes” or caste-based or religion-
based murder and submit a national plan of action and a State plan of action to
curb such crimes; (ii) to direct State Governments to constitute special cells in each
district; and (iii) to launch prosecutions in each case of “honour killing” or caste-
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based or religion-based murder. This Court disposed of the writ petition by directing
preventive steps, remedial measures, and punitive measures to curb honour
killings. Writing for a three-Judge Bench, Dipak Misra, C.J. observed that the ability
of an individual to make choices is an inextricable part of dignity and “that when
two adults choose to marry out of their own volition […] they have a right to do
so.” 165
174. In Justice KS Puttaswamy (9J) (supra), Justice Nariman (in his concurring
opinion) observed that the right to privacy extends beyond the right to be let alone
to recognising the vital personal choices such as the right to abort a fetus, and the
right of same sex to marry. In Navtej (supra), this Court while decriminalising
homosexuality did not hold that the Constitution recognises a right to marry. Dipak
Misra, C.J. writing for the majority held that an individual has a right to a union
which encompasses physical, mental, sexual or emotional companionship under
Article 21 of the Constitution.
175. In Shafin Jahan (supra) and Shakti Vahini (supra), the issue before this
Court was whether State or non-State actors could interfere with a person’s choice
of whom to marry. The law prescribes certain essential conditions for a valid
marriage. In both these cases, this Court dealt with situations where State or non-
State actors prevented a couple which was otherwise entitled to marry, from
marrying. In the case of Shafin Jahan (supra), the restriction was sought to be
imposed because the partners belonged to different religions and in Shakti Vahini
(supra), this Court dealt with the issue of restraints placed by the society on the
165 Paragraph 45 of the judgment.
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exercise of a person’s right to marry a person of a difference caste and religion. In
Shafin Jahan (supra) this Court held that religion and caste cannot be
impediments in the exercise of a person’s right to choose whom to marry. In Shafin
Jahan (supra) this Court held that no State or non-State entity can interfere with
their right to marry a person of their choice.
176. Neither the majority in Justice KS Puttaswamy (9J) (supra) nor the majority
in Navtej (supra) hold that the Constitution guarantees the right to marry.
Moreover, the opinion of Justice Nariman in Justice KS Puttawamy (9J) (supra)
only made a passing reference to the right to marry. It did not trace the right to
marry to any of the entrenched fundamental rights nor did it comment on the scope
of such a right. In Justice KS Puttaswamy (9J), the issue before this Court was
whether the Constitution recognises a right to privacy. Thus, this case did not
address the issue of whether the Constitution recognises the right to marry. It now
falls upon this Court for the first time to decide if the Constitution recognises such
a right.
b. There is no fundamental right to marry
177. The petitioners relied on the judgment of the US Supreme Court in
Obergefell (supra) in which the right to marry was recognised as a fundamental
right. In Obergefell (supra), the Supreme Court of the United States held that the
Fourteenth Amendment of the Constitution of the United States imposes a positive
obligation on the State to license a marriage between two people of the same sex.
In Michigan, Kentucky, Ohio, and Tennessee, marriage was defined as a union
between one man and one woman. The petitioners (who were same-sex couples)
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claimed that their exclusion from the institution of marriage violated the Fourteenth
Amendment of the US Constitution. 166 The petitioners filed suits in US district
courts in their home States. The district courts ruled in their favour. On appeal, the
United States Court of Appeal consolidated the cases and reversed the judgment
of the District Court holding that the State has no constitutional obligation to license
same-sex marriages or to recognise same-sex marriages performed out of State.
178. The issue before the US Supreme Court was not whether the Constitution
recognises the right to marry but whether the Fourteenth Amendment requires a
State to license a marriage between two people of the same-sex. Various decisions
of the US Supreme Court had already recognised the right to marry.167 Justice
Kennedy (writing for the majority) observed that the right to marry consists of the
following four components: (i) the right of choice; (ii) the protection of intimate
association by supporting the union of two persons; (iii) safeguards for children and
families, and (iv) cornerstone of social order because marriage is the basis for
governmental rights, benefits, and responsibilities.
179. The opinion of the majority held that the components of marriage are not
exclusive to heterosexual couples. Thus, the State by not recognising a same-sex
union (which is legal) and by not granting benefits which accrue from a marriage
was held to be treating same-sex couples unequally, violating the equal protection
clause.
166 Section 1 to the Fourteenth Amendment to the US Constitution states that no State shall deprive any person of
life, liberty, or property without due process of law and equal protection of the laws.
167 In Loving v. Virginia, 388 U.S 1, 12 (1967), the US Supreme Court invalidated bans on inter-racial unions holding
that marriage is one of the vital personal rights essential to the orderly pursuit of happiness by free men; In Turner
v. Safley, 482 U.S. 78, 95(1987) the US Supreme Court held that the right to marry was abridged by regulations
limiting the privilege of prison inmates to marry.
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180. Earlier judgments of the US Courts had held that marriage is a civic right
because it is fundamental to existence and survival168, is part of the fundamental
right to privacy 169, and essential to the orderly pursuit of happiness.170 It was also
held that without the right to marry, one is excluded from the full range of human
experience and is denied “full protection of the laws for one’s avowed commitment
to an intimate and lasting relationship.” 171 The jurisprudence which has emanated
from the US Courts indicates that the right to marry is recognised as a fundamental
right because of the benefits (both expressive and material) attached to it.
181. Entry 5 of the Concurrent List of the Seventh Schedule to the Constitution
grants both the State legislature and Parliament the power to enact laws with
respect to marriage. The provision reads as follows:
“Marriage and divorce; infants and minors; adoption; wills,
intestacy and succession; joint family and partition; all matters
in respect of which parties in judicial proceedings were
immediately before the commencement of this Constitution
subject to their personal law.”
(emphasis supplied)
182. In pursuance of the power conferred by Articles 245 and 246 read with Entry
5 of the Concurrent List, Parliament has enacted laws creating and regulating the
socio-legal institution of marriage. The State legislatures have made amendments
to such laws with the assent of the President, since the subject of marriage is in
the Concurrent list. The petitioners seek that the Court recognise the right to marry
as a fundamental right. As explained above, this would mean that even if
168 Skinner v. Oklahoma, 316 U.S 535
169 Zablocki v. Redhail, 434 U.S 374
170 Loving v. Virginia, 388 US 1
171 Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass.2003)
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Parliament and the State legislatures have not created an institution of marriage in
exercise of their powers under Entry 5 of the Concurrent list, they would be
obligated to create an institution because of the positive postulate encompassed
in the right to marry. This argument cannot be accepted.
183. As explained in the previous section, the State through the instrument of law
characterises marriage with two constituent elements: the expressive component
and the material component. Marriage may not have attained the social and legal
significance it currently has if the State had not regulated it through law. Thus, while
marriage is not fundamental in itself, it may have attained significance because of
the benefits which are realised through regulation.
184. This Court in Justice KS Puttaswamy (9J) (supra) while holding that
privacy is a fundamental right was not guided by the content given to privacy by
the State. This Court was of the opinion that if the right to privacy is not secured,
the full purport of the rights entrenched in the Constitution could not be secured.
Similarly, this Court in Unnikrishnan (supra) held that the right to education is a
fundamental right. The right to education was derived from the provisions of the
Directive Principles of the State Policy and their centrality to development of an
individual. Entry 25 of the Concurrent list authorizes Parliament and State
legislatures to enact laws on “education.” The State in pursuance of this power
has enacted numerous legislations relating to education such as laws establishing
and regulating universities and colleges. However, the right to education was held
to be a fundamental right, not because of any statute or law but because of its
centrality to the values that the Constitution espouses. The arguments of the
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petitioners that the Constitution recognises a right to marry is hinged on the
meaning accorded to marriage by statutes, which cannot be accepted.
185. The Constitution does not expressly recognize a fundamental right to marry.
Yet it cannot be gainsaid that many of our constitutional values, including the right
to life and personal liberty may comprehend the values which a marital relationship
entails. They may at the very least entail respect for the choice of a person whether
and when to enter upon marriage and the right to choose a marital partner.
c. The challenge to the SMA
I. The scheme of the SMA
186. The SMA was enacted to provide a special form of marriage for couples
belonging to different religions and castes. Section 4 of the SMA prescribes
conditions relating to the solemnization of special marriages. The relevant portion
of the provision is extracted below:
“4. Conditions relating to solemnization of special
marriages.―Notwithstanding anything contained in any other
law for the time being in force relating to the solemnization of
marriages, a marriage between any two persons may be
solemnized under this Act, if at the time of the marriage the
following conditions are fulfilled, namely:―
(a) neither party has a spouse living;
[(b) neither party―
(i) is incapable of giving a valid consent to it in consequence
of unsoundness of mind; or
(ii) though capable of giving a valid consent, has been
suffering from mental disorder of such a kind or to such an
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extent as to be unfit for marriage and the procreation of
children; or
(iii) has been subject to recurrent attacks of insanity
(c) the male has completed the age of twenty-one years and
the female the age of eighteen years;
(d) the parties are not within the degrees of prohibited
relationship:
Provided that where a custom governing at least one of the
parties permits of a marriage between them, such marriage
may be solemnized, notwithstanding that they are within the
degrees of prohibited relationship;
[…] ”
(emphasis supplied)
187. Section 4(a) and (b) use the gender-neutral word ‘party.’ However, Section
4(c) stipulates that the male must have completed twenty-one years and the
female must have completed eighteen years. Section 4(d) stipulates that the
parties should not be within the degrees of prohibited relationship. Section 2(b)
defines “degrees of prohibited relationship: as follows:
“(b) “degrees of prohibited relationship”-a man and any of the
persons mentioned in Part I of the First Schedule and a
woman and any of the persons mentioned in Part II of the
said Schedule are within the degrees of prohibited
relationship.
(emphasis supplied)
188. Part I of the First Schedule consists only of women’s relationships with men,
such as mother and daughter. Part II of the First Schedule consists only of men’s
relationships with women, such as father and son. The conditions stipulated in
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Section 4 when read with the definition of prohibited relationship in Section 2(b),
limit the application of the SMA to heterosexual unions.
189. Chapter IV of the enactment lays down the consequences of marriage under
the SMA. Section 19 stipulates that the marriage solemnized under the SMA of any
member of an undivided family who professes the Hindu, Buddhist, Sikh, or Jain
religions shall be deemed to effect their severance from such family. Section 20
provides that subject to the provisions of Section 19, any person whose marriage
is solemnized under this Act shall have the same rights and shall be subject to the
same disabilities in regard to the right of succession as a person to whom the Caste
Disabilities Removal Act 1850 applies. The Caste Disabilities Removal Act 1950
provides that any law or usage which inflicts the forfeiture of rights or property, or
which would affect the right of inheritance because of renouncing religion, having
been excluded from the communion of religion, or being deprived of caste shall
cease to be enforced by law. Thus, subject to Section 19 of the Act, a person’s
right to inheritance shall be not forfeited because they married a person of another
religion or caste.
190. Section 21 states that succession to the property of any person whose
marriage is solemnized under this Act shall be regulated by the provisions of the
Indian Succession Act 1925. Section 21A provides a special provision in certain
cases. The provision states that Sections 19, 20 (to the extent that it creates a
disability), and 21 shall not apply when a marriage is solemnized between a person
who professes the Hindu, Buddhist, Sikh, or Jain religion with a person who
professes the Hindu, Buddhist, Sikh or Jain religion. The rules of succession under
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the ISA shall not apply where two persons who solemnize their marriage under the
SMA belong to the Hindu, Buddhist, Sikh, or Jain religion. Section 21 essentially
ruptured the cord between a Hindu, Buddhist, Sikh, or Jain and their personal laws
if they married under the provisions of the SMA. Section 21A was introduced in
1976 as a progressive provision. Section 21A links the SMA with the HSA if both
the parties belong to a religion to which the HSA applies. Section 21A was
introduced to remedy the disability brought in by Section 21.
191. Section 27 deals with divorce. Section 27(1A) grants the wife additional
grounds of divorce. Section 31 stipulates the Court to which a petition for divorce
must be made. Sub-Section (2) of the Section is a special provision available to
the wife for the presentation of a divorce petition. Section 36 stipulates that the
husband may be directed to pay expenses of the proceedings and such sum based
on the income of the husband when the wife has no independent income, sufficient
to support herself and necessary for divorce proceedings. Section 37 stipulates
that the court may order the husband to pay the wife permanent alimony and
maintenance.
192. The petitioners argue that Section 4 of the SMA is unconstitutional not
because it expressly excludes or bars the marriage between two persons of the
same-sex but because it excludes the solemnization of marriage between non-
heterosexual persons by implication since it only governs a heterosexual union.
II. The decision of the South African Constitutional Court in Fourie
193. The petitioners have relied on Fourie (supra), a case which emanated from
South Africa, to argue that provisions of the SMA must be read in a gender-neutral
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manner. In Fourie (supra), the common law definition of marriage and Section
30(1) of the Marriage Act (Act 25 of 1961)172 were challenged. The common law
definition of marriage in South Africa is that it is a “union of one man with one
woman, to the exclusion, while its lasts, of all others.” The formula for marriage
prescribed by Section 30(1) of the Marriage Act is extracted below:
“Do you, A.B., declare that as far as you know there is no
lawful impediment to your proposed marriage with C.D. here
present, and that you call all here present to witness that you
take C.D. as your lawful wife (or husband)?’, and thereupon
the parties shall give each other the right hand and the
marriage officer concerned shall declare the marriage
solemnized in the following words: ‘I declare that A.B. and
C.D. here present have been lawfully married.”
(emphasis supplied)
194. The petitioners in Fourie (supra) argued that the reference of “husband or
wife” in Section 30(1) excluded same-sex couples. The South African
Constitutional Court allowed the petition by holding that Section 30(1) was
unconstitutional because it excluded same-sex couples. The opinion of the majority
authored by Justice Albie Sachs suspended the declaration of invalidity for one
year to cure defects in view of Section 172(1)(b) of the South African Constitution.
If the defect was not cured within the time frame stipulated, the word ‘spouse’ was
to be read in the place of “wife (or husband)”. Justice Kate O Regan who authored
the minority opinion disagreed with the majority on the question of the remedy. The
learned Judge observed that the scales of justice and equity necessitate immediate
relief and not a suspended declaration of invalidity.
172 “South African Marriage Act”
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195. The Court observed that Section 30(1) of the South African Marriage Act
was underinclusive because it excluded same-sex unions by silence and omission.
Such omission was as effective in law and practice as if effected by express
language. The Court held that it would be discriminatory if same-sex couples were
not given the benefits (both tangible and intangible) which were available to
heterosexual couples through marriage. The State justified the exclusion of same-
sex couples from the institution of marriage because of the social nature of
marriage and strong religious beliefs. The Court rejected this argument on the
ground that the reasons which were used to justify the exclusion were grounded in
prejudice and that it was not a valid justification for the violation of fundamental
rights.
196. On the question of relief, the Court made the following observations:
a. Parliament had expressly and impliedly recognised same-sex partnerships.
The Domestic Violence Act 116 of 1998 defined a domestic partnership as
a relationship between a complainant and a respondent who are of the
same or opposite sex and who live/lived together in a relationship in the
nature of marriage. The Estate Duty Act 45 of 1955 stipulated that the
spouse in relation to a deceased person includes a person who at the time
of death of the deceased person was a partner of such person in a same-
sex or heterosexual union;
b. Section 172(1)(b) of the Constitution granted the Court the power to issue
such order including suspending the declaration of invalidity for any period
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and on any conditions, to allow the competent authority to correct the
defect;
c. There was extensive consultation with the public on the issue of same-sex
marriage. The South African Law Reform Commission’s memorandum on
domestic partnership harmonised family law principles with the Bill of
Rights which was preceded by extensive public consultation; and
d. The Court instead of reading in must grant the remedy of suspended
declaration because reading in would be a temporary remedial measure
which would be far less likely to achieve equality. Legislative action was
well-suited for this purpose.
197. Though facially the case mounted by the petitioners before us is similar to
the case mounted by the petitioners in Fourie (supra), the legal and the
constitutional regime in South Africa and India varies. First, it must be noticed that
unlike the SMA, there was only one provision in the South African Marriage Act
(that is, Section 30(1)) which made a reference to heterosexual relationships.
However, as indicated above, various provisions of the SMA (Sections 4, 27(1A),
31, 36, and 37) confine marriage to a union between heterosexual persons.
Second, various enactments in South Africa already recognised same-sex unions
unlike the Indian legal landscape where no law even remotely recognises the union
between a same-sex couple. Thus, the canvas of the challenge before the South
African Constitutional Court in Fourie (supra) and the legal and constitutional
regime in place varies widely from that in India.
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III. The decision of the UK House of Lords in Ghaidan
198. Learned counsel for the petitioners argued that this Court ought to interpret
the SMA to make it ‘constitutionally compliant.’ They relied on the decision of the
House of Lords of the United Kingdom in Ghaidan (supra) and urged this Court to
adopt the principle of interpretation which had been adopted in that case.
199. In that case, the respondent was in a stable and monogamous homosexual
relationship with his partner who was a tenant in the house that the couple shared.
The respondent and his partner were living together when the latter died. The
appellant (being the landlord) claimed possession of the house. The respondent
resisted the claim on the ground that he ought to be considered a ‘statutory tenant’
in terms of UK’s Rent Act 1977. 173 This enactment provided that a surviving spouse
of the original tenant shall be the statutory tenant if the surviving spouse was
residing in the house in question immediately before the death of the original
tenant. It also stipulated that a person who was living with the original tenant “as
his or her wife or husband” shall be treated as the spouse of the original tenant. In
essence, the Rent Act protected the tenancy rights of a heterosexual couple when
the couple was in a relationship that was of a similar character as marriage. The
surviving partner in a homosexual relationship could have become entitled to an
‘assured tenancy’ which was less advantageous than a statutory tenancy.
200. The respondent contended that the difference in the treatment of
heterosexual couples and homosexual couples was based on their sexual
orientation alone, and lacked justification, infringing Article 14 (prohibition of
173 “Rent Act”
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discrimination) read with Article 8 (right to respect for private and family life) of the
European Convention on Human Rights. 174 He further argued that the court had a
duty under Section 3 of the UK’s Human Rights Act 1998175 to read and give effect
to the Rent Act in a way which was compliant with the ECHR. In other words, he
urged the court to read the Rent Act such that it granted the surviving partner in a
close and stable homosexual relationship the same rights as the surviving partner
in a heterosexual relationship of a similar nature – the right to succeed the tenancy
as a statutory tenant. The court of first instance rejected the respondent’s
arguments. The first appellate court allowed the appeal, leading to proceedings
before the final appellate authority, the House of Lords (now, the Supreme Court
of the UK).
201. The House of Lords accepted the respondent’s arguments.176 It noted that
the rationale of the Rent Act was that the security of tenure in a house which a
couple had made their home ought not to depend upon which of them dies first. It
held that there was no legitimate state aim which justified the difference in
treatment of heterosexual and homosexual couples, and found that the Rent Act
therefore violated the rights of the respondent under the ECHR. Having so found,
it relied on Section 3 of the Human Rights Act to interpret the Rent Act to mean
that the survivor of a homosexual couple would have rights on par with the survivor
of a heterosexual relationship for the purposes of succession as a statutory tenant.
174 “ECHR”
175 “Human Rights Act”
176 By a majority of 4-1.
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202. Section 3 of the Human Rights Act reads as follows:
“3. Interpretation of legislation
(1) So far as it is possible to do so, primary legislation and
subordinate legislation must be read and given effect in a way
which is compatible with the Convention rights.”
As noticed by the House of Lords in Ghaidan (supra):
a. This provision was one of the primary means by which rights under the
ECHR were brought into the law of the UK;
b. Section 3 permitted courts in the UK to depart from the unambiguous
meaning of a statute, if required;
c. It also authorized courts in the UK to depart from legislative intent in
interpreting the language used in a statute, if required;
d. It allowed courts to read in words to a statute which changed the meaning
of that statute, to make it compliant with the ECHR as long as the new
meaning was compatible with the underlying thrust of that enactment; and
e. Section 3 did not authorize courts to make decisions for which they were
not equipped, such as when there were many ways of making a particular
provision compliant with the ECHR.
The House of Lords also noted that difficult problems could arise in some cases.
203. It is not open to this Court to adopt the interpretative principle laid down in
Section 3 of the Human Rights Act for a simple reason: the House of Lords derived
the power to depart from legislative intent and read words into a statute such that
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it was compliant with the ECHR from the Human Rights Act, a statute enacted by
the Parliament of UK. It did not rely on a common law principle or fashion a principle
of interpretation based on common law. The House of Lords itself noted that “the
interpretative obligation decreed by section 3 is of an unusual and far-reaching
character.” 177 In India, there is no legislation which permits this Court to depart from
legislative intent and read words into a legislation such that it is compliant with the
Constitution. 178 As discussed in the previous segment of this judgment on the
power of judicial review, courts in India must be circumspect in relying on the law
in other jurisdictions, torn from the context in which those decisions have been
crafted. It is not permissible for this Court to exercise a power which the Parliament
of another country conferred on its courts, absent a similar conferment of power
under the Indian Constitution. This Court must exercise those powers which it has
by virtue of the Constitution of India or any other Indian law. In any event, as the
House of Lords held, courts may not exercise this power to make decisions for
which they are ill equipped. This Court is not equipped to recognize the right of
queer persons to marry under the SMA for reasons discussed in subsequent
segments.
IV. Institutional limitations with respect to the interpretation of SMA
204. It must be noted that this Court in the beginning of the hearing restricted the
breadth of the challenge to non-personal marriage law. However, on a careful
perusal of the provisions of the SMA, it is evident that Section 21A links the SMA
177 Opinion of Lord Nicholls of Birkenhead, Ghaidan (supra).
178 Principles of interpretation which are well accepted in India must guide this Court’s decision. For example, when
two constructions of a provision are possible, courts ought to prefer the construction which gives effect to the
provision rather than the one which renders it inoperative. M. Pentiah v. Veeramallappa Muddal, 1961 (2) SCR
295; Tinsukhia Electric Supply Co. Ltd. v. State of Assam, (1989) 3 SCC 709
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to personal and non-personal laws of succession. In fact, such is the complexity of
the SMA that the petitioners themselves had to submit lengthy charts on
workability, which in effect reworked the structure of the SMA to include non-
heterosexual unions.
205. Dr. Abhishek Manu Singhvi, appearing for one of the petitioners submitted
that there are three plausible interpretations of Section 21A in its application to
marriages between two Hindus under the provisions of the SMA:
a. The Court may choose not to decide on the applicability of Section 21A to
non-heterosexual Hindu couples in the present litigation and leave the
question of succession open for future litigation;
b. The succession of Hindu non-heterosexual couples will be governed by the
HSA and that of other interfaith non-heterosexual couples will be governed
by the ISA (similar to interfaith heterosexual couples or heterosexual
couples of other religions). This requires a gender-neutral reading of the
HSA and the ISA. The words “widow” and “widower” in the ISA and “male
Hindu”, “female Hindu”, “widow”, and “widower” in the HSA can be
interpreted in a gender neutral manner. This interpretation must only be
limited to issues related to marriage. To include transgender persons, the
Court may hold that the words “male” and “female” under Sections 8 and
15 of the HSA may be read as “persons”; or
c. Since by agreement of parties, religious and personal law related issues
are beyond the scope of this litigation, it follows that provisions of secular
law that relate back to personal laws (like Section 21A) are excluded from
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consideration. Since Section 21A was introduced as an exception to the
regime under Sections 19 to 21, non-consideration of the issue would
revert the law to the position before the introduction of Section 21A which
is that ISA would apply to all marriages under the SMA.
206. In addition to the ‘reading in’ of the provisions of other statutes such as ISA
and HSA, the petitioners argue that the Court must also read into the following
provisions of the SMA:
a. The words "widow" and "widower" in Schedules II and III of SMA must be
read as "widow or widower" and "widower or widow"; and
b. Section 4(c) of SMA may be interpreted in the following way:
i. For same-sex couples, the provision may be read as prescribing
eighteen years as the minimum age for both parties in a lesbian
relationship, and twenty-one years for both parties in a gay
relationship;
ii. For transgender persons, the minimum age requirement would
depend on whichever gender/sex they identify as. So, a trans-man
would be eligible to marry at twenty one years of age while a trans-
woman would be eligible to marry at eighteen years; and
iii. For those who do not identify either as a man or a woman, the
following approach shall be adopted to ensure the inclusion of non-
binary and intersex individuals:
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A. The silence of the SMA on the minimum age qualification for
persons other than ‘men’ and ‘women’ may be read as
imposing no restriction other than the restriction imposed by
other laws that stipulate the age at which persons are capable
of making decisions for themselves, which is eighteen years;
and
B. Alternatively, the Court may lay down guidelines as an interim
measure and until Parliament fills the legislative vacuum.
207. If the Court finds that a provision is contrary to Part III of the Constitution, it
shall declare that it is void, 179 or read it down (by deleting phrases) or read words
in (by adding or substituting phrases) to save it from being declared void. If, in the
present batch of petitions, this Court holds that Section 4 is unconstitutional
because it is underinclusive to the extent that it excludes, by implication, the
marriage between same-sex couples, the court could either strike down Section 4
of the SMA or follow the workability model submitted by the petitioners. If the Court
follows the first approach, the purpose of a progressive legislation such as the SMA
would be lost. The SMA was enacted to enable persons of different religions and
castes to marry. If the SMA is held void for excluding same-sex couples, it would
take India back to the pre-independence era were two persons of different religions
and caste were unable to celebrate love in the form of marriage. Such a judicial
verdict would not only have the effect of taking the nation back to the era when it
was clothed in social inequality and religious intolerance but would also push the
179 Article 13 of the Constitution
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courts to choose between eradicating one form of discrimination and prejudice at
the cost of permitting another.
208. If this Court takes the second approach and reads words into the provisions
of the SMA and provisions of other allied laws such as the ISA and HSA, it would
in effect be entering into the realm of the legislature. The submissions of the
petitioners indicate that this Court would be required to extensively read words into
numerous provisions of the SMA and other allied laws. The Court is not equipped
to undertake an exercise of such wide amplitude because of its institutional
limitations. This Court would in effect be redrafting the law(s) in the garb of reading
words into the provisions. It is trite law that judicial legislation is impermissible. We
are conscious that the court usually first determines if the law is unconstitutional,
and then proceeds to decide on the relief. However, in this case, an exercise to
determine whether the SMA is unconstitutional because of under-inclusivity would
be futile because of the limitations of this Court’s power to grant a remedy. Whether
a change should be brought into the legislative regime of the SMA is for Parliament
to determine. Parliament has access to varied sources of information and
represents in itself a diversity of viewpoints in the polity. The Court in the exercise
of the power of judicial review must be careful not to tread into the legislative
domain. It is clarified that this Court has not adjudicated upon the validity of any
laws other than the SMA, the FMA, the Adoption Regulations, and the CARA
Circular.
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d. The challenge to the FMA
209. Some petitioners have challenged the constitutionality of the FMA and have
sought a declaration that it applies to any two persons who seek to get married,
regardless of their gender identity and sexual orientation. The FMA applies to two
categories of persons – to parties who seek to solemnize their marriage under the
FMA in a foreign country 180 and to those who seek to register their marriage under
the FMA when their marriage has been solemnized in a foreign country in
accordance with the law of that country.181 In both cases, at least one of the parties
to the marriage must be a citizen of India. 182 Section 4 of the FMA specifies certain
conditions which must be fulfilled before the parties can avail of its provisions:
“4. Conditions relating to solemnization of foreign marriages.
— A marriage between parties one of whom at least is a
citizen of India may be solemnized under this Act by or before
a Marriage Officer in a foreign country, if, at the time of the
marriage, the following conditions are fulfilled, namely:—
(a) neither party has a spouse living,
(b) neither party is an idiot or a lunatic,
(c) the bridegroom has completed the age of twenty-one years
and the bride the age of eighteen years at the time of the
marriage, and
(d) the parties are not within the degrees of prohibited
relationship:
Provided that where the personal law or a custom governing
at least one of the parties permits of a marriage between
them, such marriage may be solemnized, notwithstanding that
they are within the degrees of prohibited relationship.”
180 Chapter II, FMA
181 Chapter III, FMA
182 Section 4, FMA; Section 17(2), FMA
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210. Clauses (c) and (d) contain requirements which prevent this Court from
interpreting the FMA as applying to persons regardless of their sexual orientation.
Clause (c) requires the bridegroom to be at least twenty-one years and the bride
to be at least eighteen years of age. If this Court were to interpret Section 4 as
applying to same-sex relationships, the question of how clause (c) would apply to
such relationships would arise. Various approaches were proposed including
reading the provision as requiring a minimum age of twenty-one for all men and
eighteen for all women, such that two men who sought to marry would both be
required to be twenty-one years and two women who sought to marry would both
have to be eighteen years. Another approach that was proposed was to interpret
the provision as requiring a common minimum age for all same-sex couples. This
Court is of the opinion that such an exercise would amount to judicial legislation.
When there are various options open for a legislative change and policy
considerations abound, it is best left to Parliament to engage in democratic
decision-making and settle upon a suitable course of action.
211. Clause (d) requires the parties not to be within the degrees of prohibited
relationship. Section 2(a) defines the phrase ‘degrees of prohibited relationship’ as
having the same meaning as in the SMA. The reasons why the degrees of
prohibited relationship cannot be interpreted by this Court to include same-sex
relationships has been discussed in the preceding paragraphs. The same reasons
apply to Clause (d) of the FMA.
212. The FMA recognizes the right of an Indian citizen to marry outside India or
to a marry a person from a foreign country. In essence, it recognizes the right of a
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citizen of India to choose a life partner who is not a citizen of India. It follows that
citizens of India may enter into an abiding union with a person of their choice,
including a person of the same sex as them, even if that person is not a citizen of
India. It is accordingly clarified that the right of a citizen of India to enter into an
abiding union with a foreign citizen of the same sex is preserved.
ix. The right to enter into a union
“The need to love is as important a force in human society
as is the will to power. Power wants to destroy or consume
or drive away the other, the one who is different, whose will
is different. Love wants the other to remain, always nearby,
but always itself, always other.” 183
a. The goal of self-development and what it means to be human
213. Over the years, through dialogue both inside and outside the courts, it has
been established that the negative and positive postulates of fundamental
freedoms and the Constitution as a whole inter alia secure conditions for self-
development at both an individual and a group level. This understanding can be
traced to numerous provisions of Part III of the Constitution, the preambular values,
and the jurisprudence which has emanated from Courts. For example, this Court
has held that the right to live under Article 21 secures more than the right of
physical existence. It includes, inter alia, the right to a quality life which has been
interpreted to include the right to live in an environment free from smoke and
pollution, 184 the right to access good roads, 185 and a suitable accommodation which
would enable them to grow in every aspect – mental, physical, and intellectual. 186
183 Margaret Trawick, Notes on Love in a Tamil Family (University of California Press 1992)
184 MC Mehta v. Union of India, (2019) 17 SCC 490
185 State of Himachal Pradesh v. Umed Ram Sharma, (1986) 2 SCC 68
186Shantistar Builders v. Narayan Khimalal Totame (1990) 1 SCC 520
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Similarly, it has been established that a free exchange of ideas recognized under
Article 19 is an integral aspect of the right to self-development. 187 The rights against
exploitation 188 and against discrimination and untouchability189 secure the creation
of equal spaces in public and private spheres, which is essential for self-growth.
The right to quality education without discrimination 190 also ensures that every
citizen secures basic education to develop themselves. The freedom to profess
and practice religion 191 also enables individuals to evolve spiritually.
214. This understanding of the Constitution is substantiated on a reading of Part
IV of the Constitution. To illustrate, Article 38 states that the State shall strive to
promote the welfare of the people, Article 42 stipulates that the State shall
endeavour to secure just and humane conditions of work, and Article 47 places a
duty on the State to raise the level of nutrition and the standard of living. The
Constitution, through both positive and negative postulations, inter alia capacitates
citizens in their quest to develop themselves. Such capacity-building enables them
to achieve their full potential in both the private and the public space, and to be
happy. The Indian Constitution (unlike, say, the South African Constitution) does
not expressly provide that the Constitution seeks to improve the quality of life and
free the potential of each person. However, such an understanding can be gleaned
from the provisions of Part III and Part IV of the Constitution. Thus, one of the
purposes of the rights framework is to enable the citizenry to attain the goal of self-
development.
187 D.C Saxena v. Hon’ble Chief Justice of India, (1996) 5 SCC 216
188 Articles 23 and 24 of the Constitution
189 Articles 15 and 16 of the Constitution
190 Article 21A of the Constitution
191 Articles 25 to 28 of the Constitution
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215. Martha C. Nussbaum laid down a list of ten capabilities which are central
requirements to live a quality life. 192 Two of the identified capabilities are crucial for
our discussion. 193 The first is ‘emotions’ which is characterized as follows:
“5. Emotions: Being able to have attachments to things and
people outside ourselves; to love those who love and care for
us, to grieve at their absence; in general, to love, to grieve, to
experience longing, gratitude, and justified anger. Not having
one’s emotional development blighted by fear and anxiety.
(Supporting this capability means supporting forms of human
association that can be shown to be crucial in their
development)”
(emphasis supplied)
The second is ‘affiliation’ which is characterized as follows:
“7. Affiliation: A. Being able to live with and toward others, to
recognize and show concern for other human beings, to
engage in various forms of social interaction; to be able to
imagine the situation of another. (Protecting this capability
means protecting institutions that constitute and nourish
such forms of affiliations, and also protecting the freedom
of assembly and political speech).”
(emphasis supplied)
216. The capabilities of ‘emotions’ and ‘affiliations’ identified by Nussbaum for
self-development and sustaining a quality life are crucial for two important reasons.
First, both capabilities focus on the human side of a person, that is, the ability and
necessity of a person to emote and form relationships and associations. Second,
the distinction between the capabilities of ‘emotions’ and ‘affiliation’ is that in the
former, the emphasis is upon the agency of the individual and the freedom they
192 Martha (n 150)
193 The other capabilities listed by Martha C. Nussbaum include ‘life’, ‘bodily health’, ‘bodily integrity’, ‘senses,
imagination and thought’, ‘practical reason’, ‘other species’, and ‘play’.
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have to form bonds with other people while in the latter, the emphasis is upon
granting recognition to such associations.
217. Humans are unique in many respects. We live in complex societies, are able
to think, communicate, imagine, strategize, and do more. However, that which sets
us apart from other species does not by itself make us human. These qualities are
necessary elements of our humanity but taken alone, they paint an incomplete
picture. In addition to these qualities, our ability to feel love and affection for one
another makes us human. We may not be unique in our ability to feel the emotion
of love but it is certainly a fundamental feature of our humanity. We have an innate
need to see and to be seen – to have our identity, emotions, and needs fully
acknowledged, recognized, and accepted. The ability to feel emotions such as
grief, happiness, anger, and affection and the need to share them with others
makes us who we are. As human beings, we seek companionship and most of us
value abiding relationships with other human beings in different forms and
capacities. These relationships may take many forms – the natal family, cousins
and relatives, friends, romantic partnerships, mentors, or students. Of these, the
natal family as well as the family created with one’s life partner form the
fundamental groups of society. 194 The need and ability to be a part of a family forms
a core component of our humanity. These relationships which nourish the
emotional and spiritual aspects of our humanity are important in and of themselves.
Further, they are as important to self-development as the intellectual (and
194 The Preamble of the United Nations Convention on the Rights of the Child recognizes the importance of the
family in the following terms: “…Convinced that the family, as the fundamental group of society and the natural
environment for the growth and well-being of all its members and particularly children, should be afforded the
necessary protection and assistance so that it can fully assume its responsibilities within the community…”
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eventually, financial) nourishment we receive through education. Self-development
cannot be measured solely in terms of educational qualifications and financial
capabilities. Such a description is to forget what makes as human.
218. It is insufficient if persons have the ability and freedom to form relationships
unregulated by the State. For the full enjoyment of the such relationships, it is
necessary that the State accord recognition to such relationships. Thus, the right
to enter into a union includes the right to associate with a partner of one’s choice,
according recognition to the association, and ensuring that there is no denial of
access to basic goods and services is crucial to achieve the goal of self-
development.
b. The rights under Article 19
I. The right to freedom of speech and expression and to form intimate
associations
219. Article 19(1)(a) of the Constitution recognizes the right to freedom of speech
and expression. Freedom postulates within its meaning, both, an absence of State
control as well as actions by the State which create the conditions for the exercise
of rights and freedoms. Article 19(1)(c) of the Constitution recognizes the freedom
to form associations or unions or co-operative societies. The freedom of speech
and expression is not limited to expressive words. It also includes other forms of
expression such as the manifestation of complex identities of persons through the
expression of their sexual identity, choice of partner, and the expression of sexual
desire to a consenting party. Earlier judgments of this Court have held that
expression of gender identity is a protected freedom under Article 19(1)(a). In
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NALSA (supra), this Court held that the expression of gender identity is a form of
protected expression under Article 19(1)(a). In Navtej (supra), this Court held that
Section 377 of the IPC infringes upon the freedom of expression of queer persons,
protected under Article 19(1)(a).
220. Courts have traditionally interpreted the right to form an association
guaranteed under Article 19(1)(c) to mean associations formed by workers or
employees for collective bargaining to attain equitable working conditions.
However, the entire gamut of the freedom protected under Article 19(1)(c) cannot
be restricted to this singular conception. The ambit of the freedom under Article
19(1)(c) is much wider. The provision does not merely protect the freedom to form
an association to create spaces for political speech or for espousing the cause of
labour rights. While that is a very crucial component of the freedom protected under
Article 19(1)(c), the provision also protects the freedom to engage in other forms
of association to realize all forms of expression protected under Article 19(1)(a).
221. In Roberts v. United States Jaycees, 195 the US Supreme Court read
‘freedom of association’ widely to include the freedom to form intimate
associations. The factual matrix before the Court was that regular membership to
the respondent-corporation was restricted to men between the ages of fifteen to
thirty-five. Associate membership was offered to those to whom regular
membership was not available. Complaints were filed alleging that the exclusion of
women from full membership violated the Minnesota Human Rights Act which
made it discriminatory to deny to any person the full and equal enjoyment of the
195 468 U.S 609 (1984)
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goods, services, facilities, privileges, advantages, and accommodations of a place
of public accommodation because of race, color, creed, religion, disability, national
origin or sex. The US Supreme Court had to decide if any interference with the
organization’s membership policy would violate the respondent’s freedom of
association guaranteed under the First Amendment. Justice Brennan, writing for
the majority, observed that the freedom of association constitutes two facets. First,
the freedom to enter into intimate human relationships secure from undue state
interference (“the intrinsic element”); and second, the freedom to form associations
to engage in activities protected by the First Amendment such as speech,
assembly, and the exercise of religion (“the instrumental element”). The Court
observed that individuals have the freedom to form intimate associations because
individual liberty can be secured only when the State does not unjustifiably interfere
with the formation and preservation of certain kinds of highly personal
relationships. The Constitution protects such relationships because individuals
draw emotional enrichment from close ties such as those created by marriage,
children, and cohabitation, which contribute towards identity building and self-
development. Justice Brenan qualified the freedom by observing that only personal
relationships (which are characterized by their attributes such as relative
smallness, a high degree of selectivity in decisions to begin and maintain the
affiliation, the seclusion from others in critical aspects of the relationship) are
protected. 196
196 The right to form an intimate association has been expanded upon by the Supreme Court of US in Lawrence v.
Texas, 539 U.S 558 (2003) by which the sodomy laws were held unconstitutional.
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222. Kenneth L. Karst, who developed the idea of the freedom of intimate
association 197 argues that the Courts have traditionally not permitted the State to
interfere or regulate in certain kinds of personal relationships, thereby elevating it
to a distinct freedom. Intimate association is characterized by a sense of collectivity
which exists beyond two individuals. One of the prominent ideas embraced by the
freedom of intimate association is the opportunity it affords to enjoy the society of
the other person who is a part of the relationship and the ability to choose to form
and maintain such a relationship. 198 The opportunity to enjoy the society of one’s
partner may be denied either directly or indirectly. It could be denied directly when
the law prohibits such an association. The operation of Section 377 of the IPC
criminalizing homosexual activity is a form of direct restriction on the freedom of
association.
223. On the other hand, the State could indirectly infringe upon the freedom when
it does not create sufficient space to exercise that freedom. A formal associational
status or recognition of the association is necessary for the free and unrestricted
exercise of the freedom to form intimate associations. Needless to say, there may
be reasonable restrictions on this right. However, other than legally valid and
binding restrictions, the right to intimate associations must be unrestricted. The
State by not endorsing a form of relationship encourages certain preferences over
others. 199 In a previous segment of this judgment, we have discussed the tangible
and intangible benefits of recognizing relationships in the form of marriage. While
the tangible benefits of marriage are traceable to the content of law, the intangible
197 Kenneth L Karst, The freedom of intimate association, (1980) The Yale Law Journal, Vol. 89 (4) 624-692
198 ibid
199 Evan Gerstmann, Same-sex marriage and the Constitution, (Cambridge University Press 2017)
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benefits are secured merely because State recognises the relationship through the
instrument of law. Intangible benefits in the form of expressive advantages exist
irrespective of the content of the law. Even if the law does not grant any special
material benefits to a relationship, the relationship would still be considered to be
legitimate in the eyes of the society. The freedom to choose a partner and the
freedom to enjoy their society which are essential components of the right to enter
into a union (and the freedom of intimate association) would be rendered otiose if
the relationship were to be discriminated against. For the right to have real
meaning, the State must recognise a bouquet of entitlements which flow from an
abiding relationship of this kind. A failure to recognise such entitlements would
result in systemic discrimination against queer couples. Unlike heterosexual
couples who may choose to marry, queer couples are not conferred with the right
to marry by statute. To remedy this, during the course of the hearing, the Solicitor
General of India made a statement that a Committee chaired by the Cabinet
Secretary will be constituted to set out the rights which will be available to queer
couples in unions. The Committee shall set out the scope of the benefits which
accrue to such couples.
II. The right to settle in any part of India
224. Article 19(1)(e) of the Constitution stipulates that all citizens shall have the
right to reside and settle in any part of the territory of India. In exercise of this right,
citizens may reside in any village, town, or city in any state or union territory
irrespective of the state in which they were born or are domiciled. Article 19(1)(e)
proscribes differentiation on the basis of the native place of a person. As with other
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fundamental rights, it is subject to reasonable restrictions. In Maneka Gandhi v.
Union of India,200 this Court observed that it was a historical fact that there were
rivalries between some states in the country. It was therefore not beyond the realm
of possibility that a particular state would restrain individuals domiciled in another
state from residing or settling in the first state. In view of this, the Court held that
the intention behind Article 19(1)(d) (the right to move freely throughout the territory
of India) and Article 19(1)(e) was to prevent the states from imposing such
restrictions. In this way, the provision was thought to emphasize the unity and
oneness of India.
225. Article 19(1)(e) uses the expressions “reside” and “settle.” The term “reside”
can mean either a temporary residence or a permanent residence but there is a
certain level of permanency attached to the word “settle” in India. One can reside
in a particular place in the course of their education or employment but to settle
down in that place means to build one’s life there and reside their permanently.201
In P. Ramanatha Aiyar’s Law Lexicon (1997 edition), it is stated:
“The word “settled” has no precise or determinate meaning.
In popular language, it intends going into a town or place to
live and take up one’s abode. A person is said to be settled
where he has his domicile or home.”
Colloquially, people say that a person has “settled down” when they are well
established in their careers or when they have chosen a life partner or married
somebody.
200 (1978) 1 SCC 248
201 The term “settle down” has previously been used by this Court in this sense. See, for instance, Pradeep Jain v.
Union of India, (1984) 3 SCC 654
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226. Citizens of India have the right to settle in any part of the territory of India in
terms of Article 19(1)(e). They, like all other citizens, may exercise this right in two
ways:
a. First, they may build their lives in a place of their choosing (in accordance with
law) either by themselves or with their partner. They may reside in that place
permanently (subject to other reasonable restrictions including those intended
to protect the rights of tribal communities). This right is uniquely significant to
persecuted groups (such as queer persons, inter-caste couples, or interfaith
couples) who migrate from their hometowns to other places in the country,
including cities; 202 and
b. Second, they may “settle down” with another person by entering into a lasting
relationship with them. In fact, this mode of the exercising the right under
Article 19(1)(e) is encompassed by the first mode because to many people,
building a life includes choosing their life partner.
Hence, the right to enter into a union is also grounded in Article 19(1)(e).
c. Facets of the right to life and liberty under Article 21
I. The atypical family
227. One’s natal family usually consists of one’s immediate relatives. The people
who constitute one’s ‘immediate relatives’ vary from society to society. For
instance, many Indians grow up in a Hindu Undivided Family which is commonly
202 Purayil (n 96)
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known as a ‘joint family’ and which is recognised by the law. The family is typically
thought of as comprising a mother and a father, to which a life partner is added
(usually in a heterosexual relationship). Later, children join this family, and so the
cycle continues. While this conception of a family dominates our collective
understanding, it is not the only valid mode by which a family can be formed. Myriad
persons do not follow this blueprint for the creation of a family. They instead have
their own, atypical blueprint.
228. In Deepika Singh (supra), this Court rightly acknowledged the existence of
atypical families:
“26. The predominant understanding of the concept of a
“family” both in the law and in society is that it consists of a
single, unchanging unit with a mother and a father (who
remain constant over time) and their children. This
assumption ignores both, the many circumstances which may
lead to a change in one's familial structure, and the fact that
many families do not conform to this expectation to begin with.
Familial relationships may take the form of domestic,
unmarried partnerships or queer relationships. A household
may be a single parent household for any number of reasons,
including the death of a spouse, separation, or divorce.
Similarly, the guardians and caretakers (who traditionally
occupy the roles of the “mother” and the “father”) of children
may change with remarriage, adoption, or fostering. These
manifestations of love and of families may not be typical but
they are as real as their traditional counterparts. Such atypical
manifestations of the family unit are equally deserving not only
of protection under law but also of the benefits available under
social welfare legislation. The black letter of the law must not
be relied upon to disadvantage families which are different
from traditional ones.”
229. Queer relationships may constitute one’s family. Persons in such
relationships are fulfilling their innate and human need to be a part of a family and
to create their family. This conception of a family may be atypical but its atypical
nature does not detract from the fact that it is a family. Further, queer persons are
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often rejected by their natal families and have only their partner or their chosen
community to fall back on. In addition to the different forms of kinship recognized
in Deepika Singh (supra), the guru-chela bond of transgender persons (discussed
in the previous section of this judgment) may also be a familial bond. Unlike hijras
who often have the option of joining the hijra community and forming the guru-
chela bond, transmen do not have traditions or customs which may lead to the
creation of non-biological familial bonds with other transmen as a group.
Regardless, they form close bonds with other transmen and many consider these
bonds to be familial. 203 These atypical manifestations of the family unit equally
constitute the fundamental groups of society. The Constitution accounts for plural
identities and values. It protects the right of every person to be different. Atypical
families, by their very nature, assert the right to be different. Difference cannot be
discriminated against simply because it exists. Articles 19 and 21 protect the rights
of every citizen and not some citizens.
230. Some petitioners have suggested that the atypical family is a queer person’s
‘chosen family.’ Chosen families comprise people who are selected to be one’s kin,
with the exercise of one’s agency. 204 Some have argued that the entire spectrum
of queer relationships in India may not always be based on choice, with guru-chela
relationships often assigned rather than chosen. 205 Hence, while some queer
relationships may accurately be described as the ‘chosen family,’ all of them are
the ‘atypical family.’
203 Purayil (n 96)
204 See generally, Kath Weston, Families We Choose: Lesbians, Gays, Kinship (Columbia University Press 1997)
205 Reddy (n 81)
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II. The right to dignity, autonomy, and privacy
231. It is not only formal freedom which is significant but also substantive freedom
or the opportunity to achieve what one sets out to achieve and the conditions which
enable this. The freedom guaranteed under the Constitution is realised in
substance only when the conditions for their effective exercise are created. Formal
freedom is translated into substantive freedom through the formulation of schemes
and policies. When citizens are prevented from exercising their rights, the courts
of the country create the conditions for their exercise by giving effect to the laws
enacted by the legislative wing or the schemes formulated by the executive wing.
In the process, courts interpret the Constitution and the rights and freedoms it
recognizes. This exercise lies at the core of Article 21 of the Constitution, which
guarantees the right to life and personal liberty.
232. A few paragraphs ago, this Court discussed what it means to be human. The
question of what it means to be free – or to have liberty – is of equal significance.
It is a question which has plagued philosophers, ethicists, and economists alike.
The answer may mean different things to different people and may change
depending on the circumstances in which the question is asked. Simply put, the
ability to do what one wishes to do and be who one wishes to be (in accordance
with law) lies at the heart of freedom.
233. Article 21 is available to all persons including queer persons. Article 21
encompasses the rights to dignity, autonomy, and privacy. Each of these facets
animates the others. It is not possible to speak of the right to enter into a union
without also speaking of the right to intimacy, which emanates from these
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rights. These rights demand that each individual be free to determine the course
of their life, as long as their actions are not barred by law. Choosing a life partner
is an integral part of determining the course of one’s life. Most people consider this
decision to be one of the most important decisions of their lives – one which defines
their very identity. Life partners live together, spend a significant amount of time
with one other, merge their respective families, create a family of their own, care
for each other in times of sickness, support one another and much more. Hence,
the ability to choose one’s partner and to build a life together goes to the root of
the right to life and liberty under Article 21. Undoubtedly, many persons choose not
to have a life partner – but this is by choice and not by a deprivation of their agency.
The law constrains the right to choose a partner in certain situations such as when
they are within prohibited degrees of relationships or are in a consanguineous
relationship.
234. Principle 24 of the Yogyakarta Principles (on the application of international
human rights law in relation to sexual orientation and gender identity) 206 states that
all people have the right to found a family:
“Everyone has the right to found a family, regardless of sexual
orientation or gender identity. Families exist in diverse forms.
No family may be subjected to discrimination on the basis of
the sexual orientation or gender identity of any of its
members.”
While India is not a signatory to the Yogyakarta Principles, this Court has
recognized their relevance to the adjudication of cases concerning sexual
minorities. 207 Depriving someone of the freedom to choose their life partner robs
206 “Yogyakarta Principles"
207 NALSA (supra); Navtej Singh Johar (supra)
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them of their autonomy, which in turn is an affront to their dignity. Preventing
members of the LGBTQ community from entering into a union also has the result
of denying (in effect) the validity of their sexuality because their sexuality is the
reason for such denial. This, too, would violate the right to autonomy which extends
to choosing a gender identity and sexual orientation. The act of entering into an
intimate relationship and the choices made in such relationships are also protected
by the right to privacy. As held by this Court in Navtej (supra) and Justice KS
Puttaswamy (9J) (supra), the right to privacy is not merely the right to be left alone
but extends to decisional privacy or privacy of choice.
III. The right to health
235. The right to health is also a crucial component of the right to life and
liberty. 208 The health of a person includes both, their physical and their mental
wellbeing. Parliament enacted the Mental Healthcare Act 2017 209 to regulate the
provision of mental healthcare services. An assessment of the mental health of a
person cannot be limited to considering whether they have a mental illness or
disease but must also include an assessment of whether their mental health is
thriving. The Constitution of the World Health Organization declares that:
“Health is a state of complete physical, mental and social well-
being and not merely the absence of disease or infirmity.”
Mental health is therefore a state of complete mental wellbeing and not merely the
absence of mental illnesses. Parliament is also cognizant of this fact as evident
208 Common Cause v. Union of India, (2018) 5 SCC 1; Union of India v. Moolchand Kharaiti Ram Trust, (2018) 8
SCC 321
209 “Mental Healthcare Act”
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from the overall scheme and provisions of the Mental Healthcare Act. Though this
statute is primarily concerned with mental illnesses and access to healthcare,
Chapter VI recognizes the value of complete mental wellbeing by providing for the
promotion of and awareness about mental health. A person’s mental well-being
can only be secured if they are allowed the freedom and liberty to make choices
about their lives. If their choices are restrained, their overall mental well-being
would undoubtedly be degraded. Choices may be restrained by expressly denying
them their freedom or by failing to create conditions for the exercise of such
freedom.
236. The right of queer persons to access mental healthcare is recognized by
Section 18 which stipulates that persons have a right to access mental healthcare
without being discriminated against on the basis of their sex, gender, or sexual
orientation. This is undoubtedly a progressive step in line with constitutional ideals.
The mental health of members of the LGBTQ community may suffer not only
because of the discrimination they may face at the hands of their families or society
in general but also because they are prevented from choosing their life partner and
entering into a meaningful, long-lasting relationship with them. The effect of the
right to life under Article 21 read with Section 18 of the Mental Healthcare Act is
that queer people have the right to complete mental health, without being
discriminated against because of their sex, gender, or sexual orientation. A natural
consequence of this is that they have the right to enter into a lasting relationship
with their partner. They also have a right not to be subjected to inhumane and cruel
practices or procedures.
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d. The right to freedom of conscience under Article 25
237. Article 25(1) of the Constitution is as follows:
“25. Freedom of conscience and free profession, practice and
propagation of religion
(1) Subject to public order, morality and health and to the other
provisions of this Part, all persons are equally entitled to
freedom of conscience and the right freely to profess, practise
and propagate religion.”
Article 25(1) has four components – the first component makes the right available
to all persons. The second component indicates that all persons are equally
entitled to the rights it codifies. The third component deals with two distinct
concepts: the right to freedom of conscience and the right freely to profess, practice
and propagate religion. While the freedom of conscience subsumes within its fold
the right to profess, practice and propagate religion, it is not restricted to this right
alone. The rights with respect to religion are one aspect of the freedom of
conscience. The fourth component makes the rights codified in Article 25 subject
to public order, morality, health, and the other provisions of Part III. The right under
Article 25 is an individual right because conscience inheres in an individual. 210
238. The right under Article 25 is also available to members of the LGBTQ
community since it is available to all persons. But what does this freedom entail,
beyond religious rights? Black’s Law Dictionary defines conscience in the following
terms:
“Conscience. The moral sense; the faculty of judging the
moral qualities of actions, or of discriminating between right
and wrong; particularly applied to one’s perception and
210 Indian Young Lawyers Assn. v. State of Kerala & Ors. (2019) 11 SCC 1
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judgment of the moral qualities of his own conduct, but in a
wider sense, denoting similar application of the standards of
morality to the acts of others. The sense of right and wrong
inherent in every person by virtue of his existence as a social
entity. …” 211
(emphasis supplied)
239. All persons, including members of the queer community, have the right to
judge the moral quality of the actions in their own lives, and having judged their
moral quality, have the right to act on their judgment in a manner they see fit. This
attribute is of course not absolute and is capable of being regulated by law. In the
segment of this judgment on the right to life and liberty, this Court noticed that the
meaning of liberty is – at its core – the ability to do what one wishes to do and be
who one wishes to be, in accordance with law. All persons may arrive at a decision
regarding what they want to do and who they want to be by exercising their freedom
of conscience. They may apply their sense of right and wrong to their lives and live
as they desire, in accordance with law. Some of the decisions the moral quality of
which they will judge include the decision on who their life partner will be and the
manner in which they will build their life together. Each individual is entitled to
decide this for themselves, in accordance with their conscience.
240. The right under Article 25 is subject to four exceptions – public order,
morality, health, and the other provisions of Part III. The respondents have not
demonstrated that public order will be in peril or that the health of the public at large
or of individuals will be adversely impacted, if queer persons enter into a union with
their partners. As for morality, it is settled law that Article 25 speaks of constitutional
211 Black’s Law Dictionary (5th edn.; 1979)
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morality and not societal morality. In Indian Young Lawyers Assn. v. State of
Kerala, 212 a five-Judge Bench of this Court (of which one of us, DY Chandrachud,
J. was a part) held:
“Morality for the purposes of Articles 25 and 26 cannot have
an ephemeral existence. Popular notions about what is moral
and what is not are transient and fleeting. Popular notions
about what is or is not moral may in fact be deeply offensive
to individual dignity and human rights. Individual dignity
cannot be allowed to be subordinate to the morality of the
mob. Nor can the intolerance of society operate as a
marauding morality to control individual self-expression in its
manifest form. … The expression has been adopted in a
constitutional text and it would be inappropriate to give it a
content which is momentary or impermanent. Then again, the
expression 'morality' cannot be equated with prevailing social
conceptions or those which may be subsumed within
mainstream thinking in society at a given time. … The content
of morality is founded on the four precepts which emerge from
the Preamble. The first among them is the need to ensure
justice in its social, economic and political dimensions. The
second is the postulate of individual liberty in matters of
thought, expression, belief, faith and worship. The third is
equality of status and opportunity amongst all citizens. The
fourth is the sense of fraternity amongst all citizens which
assures the dignity of human life.”
Hence, the content of morality must be determined on the basis of the preambular
precepts of justice, liberty, equality, and fraternity. None of these principles are an
impediment to queer persons entering into a union. To the contrary, they bolster
the proposition that queer persons have the right to enter into such a relationship.
Finally, the other provisions in Part III (which may also restrict the exercise of the
right under Article 25) do not act as a bar to the exercise of the right in the present
case. Similar to the preambular values, they give rise to the right to enter into a
union.
212 (2019) 11 SCC 1
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241. A union may emerge from an abiding, cohabitational relationship of two
persons – one in which each chooses the other to impart stability and permanence
to their relationship. Such a union encapsulates a sustained companionship. The
freedom of all persons (including persons of the queer community) to form a union
was recognised by this Court in Navtej (supra):
“167. … There can be no doubt that an individual also has a
right to a union under Article 21 of the Constitution. When we
say union, we do not mean the union of marriage, though
marriage is a union. As a concept, union also means
companionship in every sense of the word, be it physical,
mental, sexual or emotional. The LGBT community is seeking
realisation of its basic right to companionship, so long as such
a companionship is consensual, free from the vice of deceit,
force, coercion and does not result in violation of the
fundamental rights of others.”
Such a union has to be shielded against discrimination based on gender or sexual
orientation.
242. In K.S. Puttaswamy (Privacy-9J.) v. Union of India,213 one of us (Dr. DY
Chandrachud, J.) held that discrimination against an individual on the basis of
sexual orientation is offensive to their dignity and self-worth:
“144. … Discrete and insular minorities face grave dangers of
discrimination for the simple reason that their views, beliefs or
way of life does not accord with the “mainstream”. Yet in a
democratic Constitution founded on the Rule of Law, their
rights are as sacred as those conferred on other citizens to
protect their freedoms and liberties. … Discrimination
against an individual on the basis of sexual orientation is
deeply offensive to the dignity and self-worth of the
individual. Equality demands that the sexual orientation
of each individual in society must be protected on an
even platform. The right to privacy and the protection of
213 (2017) 10 SCC 1
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sexual orientation lie at the core of the fundamental rights
guaranteed by Articles 14, 15 and 21 of the Constitution.”
(emphasis supplied)
243. This Court recognized that equality demands that queer persons are not
discriminated against. An abiding cohabitational relationship which includes within
its fold a union of two individuals cannot be discriminated against on the basis of
sexual orientation. Material and expressive entitlements which flow from a union
must be available to couples in queer unions. Any form of discrimination has a
disparate impact on queer couples who unlike heterosexual couples cannot marry
under the current legal regime.
244. As a consequence of the rights codified in Part III of the Constitution, this
Court holds 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. At
this juncture, it is necessary to clarify the difference between relationships and
unions of the kind which this Court speaks of, and unions and marriages. Any
person may enter into a consensual romantic or sexual relationship with another
person. This may last for a few months or for years. Regardless of the period for
which the relationship continues, no legal consequences attach to it, except where
provided by law (such as in terms of the DV Act). However, when two persons
enter into a union with a person whom they consider to be their life partner, certain
legal consequences will follow. For instance, if one of them happens to die, their
partner will have the right to access the body of the deceased.
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x. Restrictions on the right to enter into a union
a. The right to enter into a union cannot be restricted based on sexual
orientation
245. In Navtej (supra), the concurring opinion authored by one of us (Justice DY
Chandrachud) noted that Article 15 prohibits discrimination, direct or indirect, which
is founded on a stereotypical understanding of the role of sex. It was observed that
the usage of the word ‘sex’ in Article 15(1) encapsulates stereotypes based on
gender. The judgment expanded on this understanding of the provision by holding
that sexual orientation is also covered within the meaning of ‘sex’ in Article 15(1)
because (i) non-heterosexual relationships question the male-female binary and
gendered roles which are attached to them; and (ii) discrimination based on sexual
orientation indirectly discriminates based on gender stereotypes which is
prohibited by Article 15. Thus, a law which, directly or indirectly, discriminates
based on sexual orientation is constitutionally suspect. In Navtej (supra), Justice
Indu Malhotra observed that Article 15(1) prohibits discrimination based on sexual
orientation because it is analogous to the other grounds on which discrimination is
prohibited. The learned Judge observed that the common thread which runs
through the grounds mentioned in Article 15 is that they impact the personal
autonomy of an individual.
246. We find it necessary to supplement the observations of this Court in Navtej
(supra) on the impermissibility of discrimination based on sexual orientation. The
causal relationship between homophobia and gender stereotypes is not the only
constitutional approach to grounding the prohibition of discrimination based on
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sexual orientation in Article 15. Subsuming the discrimination faced by queer
persons into the sex-gender debate runs the risk of being reductionist. Gender
theory only captures one part of the complex construction of sexual deviance.
Over-emphasizing gender norms as a reason for the discrimination faced by the
queer community will be at the cost of reducing their identity.
247. At this juncture, it is important to address the argument of the learned
Solicitor General that Article 15 of the Constitution does not include sexual
orientation because it is not an ‘ascriptive’ characteristic since there is a degree of
‘choice’ in identifying as a queer person. This submission is premised on the
erroneous understanding that the common thread which runs through the grounds
mentioned in Article 15 is that they are all ascriptive characteristics.
248. Article 15 of the Constitution states that no citizen shall be discriminated
against based on “religion, race, sex, place of birth, or any of them.” Ascribed status
is described to be “assigned to individuals without reference to their innate
differences or abilities” and achieved status is described as “acquiring special
qualities” and “open to individual achievement.” 214 Thus, characteristics attained
on birth are termed as ascribed status and characteristics or qualities achieved
after birth are termed as achieved status. Before proceeding further, a preliminary
point must be made. Status is not a biological phenomenon. It is a social
phenomenon.215 The status of a person is identified based on how a person is
214 Ralph Linton, The Study of Man: An introduction (1936)
215 Irving S. Falodare, A Clarification of “Ascribed Status” and “Achieved Status”, The Sociological Quarterly, Vol.
10, No. 1 (Winter, 1969), pp 53-61
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perceived. It depends on how the society (conditioned by social norms) sees an
individual as a part of a group.
249. This Court has in many judgments held that caste is an ascribed status. 216
The argument of Dr Abhishek Manu Singhvi that Article 15 prohibits discrimination
on the ground of sexual orientation because it is an ascribed characteristic, and
the argument of the learned Solicitor General that sexual orientation is not a
ascribed characteristic (and is thus, not protected under Article 15) fails to give
effect to the full purport of the anti-discrimination principle encompassed in Article
15. A core difference between ascribed and achieved status is that the former is
considered to be irreversible (where a person is born with it) but the latter is
reversible. 217 The assumption that Article 15 only protects the status that a person
is born with and not an identity they choose runs the risk of viewing persons as
helpless individuals. It also misses the crucial point that a person who chooses an
identity can also be discriminated against. A few of the grounds stipulated in Article
15 may be reversed by the exercise of choice. For example, persons undergo sex-
reassignment surgeries to alter their body to align it with their gender. When a
person wishes to choose a different label for their gender, they face other forms of
discrimination and stigma different from the discrimination that they faced earlier.
Merely because a person by exercise of choice changes their sex, it cannot be
argued that the protection provided under Article 15 is not available to them.
216 See Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125; Ashoka Kumar Thakur v. Union of India, (2008) 6
SCC 1; Indian Medical Assn. v. Union of India, (2011) 7 SCC 179; Indra Sawhney v. Union of India, 1992 Supp (3)
SCC 217
217 Ibid.
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250. The Court must also be conscious of the fact that a person may face
discrimination both due to their chosen identity and imposed identity. For example,
even after a person changes their religion, it is possible that they face
discrimination due to their new religious identity and their old caste or religious
identity. This is not to say that all persons choose to change the characteristics that
they are born with. While a few people by exercising their choice (successfully and
unsuccessfully) alter what is assumed by the society to be their ascribed status, a
few others may not wish to change their trait.
251. The discussion above clearly elucidates that the distinction between
ascribed and achieved status is not as clear-cut as it may seem. The understanding
of Article 15(1) cannot be premised on the distinction between ascribed and
achieved status. Such an understanding does not truly capture the essence of the
anti-discrimination principle. The anti-discrimination principle incorporated in
Article 15 identifies grounds on the basis of which a person shall not be
discriminated. These grounds are markers of identity. The reason for
constitutionally entrenching these five markers of identity (that is, religion, caste,
race, sex, and place of birth) is that individuals (and groups) have historically and
socially been discriminated against based on these markers of identities. These
identities must be read in their historical and social context instead of through the
narrow lens of ascription.
252. When Article 15 is read in the broader manner indicated above, the word
“sex” in Article 15 of the Constitution takes within its meaning “sexual orientation”
not only because of the causal relationship between homophobia and sexism but
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also because ‘sex’ is used as a marker of identity. The word ‘sex’ cannot be read
independent of the social and historical context. Thus, ‘sex’ in Article 15 includes
within its fold other markers of identity which are related to sex and gender such
as sexual orientation. Thus, a restriction on the right to enter into a union based on
sexual orientation would violate Article 15 of the Constitution.
b. Recognizing the right of queer persons to enter into a union will not lead
to social chaos
253. The Union of India submitted that if non-heterosexual couples are permitted
to enter into a union, then the State will also have to extend the right to incestuous,
polygamous, or polyandrous relationships. To answer this question, this Court has
to deal with the issue of whether the State has the power to place restrictions on
the right to enter into a union and if so, what is the extent of such restrictions.
254. The right to enter into a union like every other fundamental right can be
restricted by the State. It is now established that the Courts must use the four-
prong proportionality test to assess if the infringement or restriction of a right is
justified. 218 The courts must use the integrated proportionality standard formulated
in Akshay N Patel v. Reserve Bank of India 219 to test a violation of the right to
enter into a union because the right is traceable to more than one provision of Part
III. However, if the State restricts the right or has the effect of restricting the right
(both directly and indirectly) based on any of identities mentioned in Article 15,
such a restriction would be unconstitutional.
218 See Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 4 SCC 346; Puttaswamy
(9J) (supra)
219 Civil Appeal No. 6522 of 2021
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255. We do not accept the argument of the Union of India that permitting non-
heterosexual unions would lead to allowing incestuous, polyandrous, and
polygamous unions for all communities (the personal laws of some religious and
trial communities currently permit polygamy or polyandry). The restriction on the
ground of sexual orientation will violate Article 15 of the Constitution. On the other
hand, the restriction on incestuous, polygamous or polyandrous unions would be
based on the number of partners and the relationships within the prohibited degree.
The Court in that case will determine if the State’s interest in restricting the right
based on the number of partners and prohibited relationships is proportionate to
the injury caused due to the restriction of choice. In view of the discussion above,
a restriction based on a marker of identity protected by Article 15 cannot be
equated to a restriction based on the exercise of choice. For this reason, we find
that the apprehension of the Union of India is unfounded when tested on
constitutional principles.
xi. The right of transgender persons to marry
256. Some petitioners have sought a declaration that the right to marry a person
of their choice applies to transgender persons. The Union of India seems to have
a mixed response to this claim. On one hand, it asserts that marriage must only be
between ‘biological’ men and ‘biological’ women. On the other hand, the written
submissions of the learned Attorney General state that “The issues relating to
transgender persons arising out of The Transgender Persons (Protection of Rights)
Act, 2019 stand on a different footing and can be addressed without reference to
the Special Marriage Act.” Before addressing the issue, it is necessary to briefly
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advert to the difference between sex, gender, and sexual orientation, as well as to
note the development of the law in relation to transgender persons.
a. Sex, gender, sexual orientation
257. The term ‘sex’ refers to the reproductive organs and structures that people
are born with.220 Intersex persons are those whose sex characteristics do not fit
the typical notions of ‘male’ and ‘female.’ 221 Sex and gender are not the same. The
Yogyakarta Principles describe one’s gender identity as:
“each person’s deeply felt internal and individual experience
of gender, which may or may not correspond with the sex
assigned at birth, including the personal sense of the body
(which may involve, if freely chosen, modification of bodily
appearance or function by medical, surgical or other means)
and other expressions of gender, including dress, speech and
mannerisms.” 222
The gender of a person may not correspond to the sex they were assigned at birth.
A transgender person is one whose gender identity does not conform with their
sex. Transgender people may choose to undergo hormonal therapy or surgery
(commonly known as gender affirming surgery or sex reassignment surgery) to
alter their bodies to make them conform to their gender. People may be
transgendered regardless of whether they choose to or are able to undergo a
surgery. As noted in preceding segments of this judgment, the term ‘transgender’
does not fully capture the rich variation in gender identities in India. Historically and
socio-culturally, Indian persons 223 with a genderqueer identity go by different
220 “Sex.” Merriam-Webster.com Dictionary, Merriam-Webster <https://www.merriam-webster.com/dictionary/sex>
221 ‘Intersex people,’ Office of the United Nations High Commissioner for Human Rights
<https://www.ohchr.org/en/sexual-orientation-and-gender-identity/intersex-people>
222 Introduction to the Yogyakarta Principles, Yogyakarta Principles
223 As also persons in other South Asian countries
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names including hijras, kothis, aravanis, jogappas, thiru nambis, nupi maanbas
and nupi maanbis. Persons who are known by these names may identify as male,
female, or the ‘third gender.’ Intersex persons are not the same as transgender
persons. They have atypical reproductive characteristics. Intersex people may
identify as male, female, or transgender.
258. Sexual orientation differs from both sex and gender. The Yogyakarta
Principles describe sexual orientation as:
“each person’s capacity for profound emotional, affectional
and sexual attraction to, and intimate and sexual relations
with, individuals of a different gender or the same gender or
more than one gender.” 224
The sex of a person is determined by their reproductive organs and structure, their
gender identity depends on their internal experience of gender, and their sexual
orientation is defined by the gender of the people that they are attracted to. The
present batch of petitions seeks the recognition of the right of persons to marry
regardless of their gender identity or sexual orientation. While previous segments
of this judgment dealt with the rights of all persons regardless of gender identity or
sexual orientation, this segment deals exclusively with the rights of persons who
are transgender or intersex.
b. The judgment of this Court in NALSA and the Transgender Persons Act
259. The judgment of this Court in NALSA (supra) recognized the right of
transgender persons to be identified by the gender identity of their choice, as well
as their right to full protection under the Constitution, on equal terms with any other
224 Ibid
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citizen of the country. The government was enjoined to recognize what the Court
termed the ‘third gender.’ The Court also noticed the absence of a suitable
legislation dealing with the rights of the transgender community. It issued directions
to the Union and State Governments to take steps to ensure that the transgender
community was able to realize its rights to the fullest extent. The judgment in
NALSA (supra) was affirmed by this Court in Justice KS Puttaswamy (supra) and
again, in Navtej (supra). The judgement in NALSA (supra) was critiqued for
generalizing the gender identities of hijras as belonging to the third gender alone. 225
The directions at paragraphs 135.1 and 135.2 of NALSA (supra) must be read as
recognizing the right of all transgender persons (including hijras and those who are
socio-culturally known by other names) to be recognized by a gender of their
choice.
260. In 2019, Parliament enacted the Transgender Persons Act to provide for the
rights of transgender persons and their welfare. This statute proscribes
discrimination against transgender persons,226 provides for a system by which their
identity may be recognized, 227 prescribes that the appropriate government shall
take welfare measures, 228 recognizes the right of residence 229 and provides for the
obligations of various parties with respect to their right to education, social security,
and health. 230 It also creates a National Council for Transgender Persons. 231 A
challenge to the constitutional validity of the Transgender Persons Act is pending
225 H.R. Vasujith Ram, 'Combatting Exclusions through Law: Rights of Transgender People in India', in Zoya Hasan,
and others (eds), The Empire of Disgust: Prejudice, Discrimination, and Policy in India and the US (Delhi, 2018;
online edn., OUP 2019)
226 Chapter II, Section 9
227 Chapter III
228 Chapter IV
229 Section 12
230 Chapter VI
231 Chapter VII
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before a different Bench of this Court. We leave the challenge to the validity of the
statute to be decided in that or any other appropriate proceeding.
261. During the course of the hearings, the Solicitor General advanced the
argument that the Transgender Persons Act prohibits discrimination against any
member of the queer community and that consequently, the queer community in
India no longer faces any stigma due to their gender identity or sexual orientation.
He argued that the Transgender Persons Act is a broad-based legislation which
includes all persons of the queer community within its ambit. This argument does
not hold any water. The legislation applies only to persons with a genderqueer or
transgender identity and not to persons whose sexual orientation is not
heterosexual. This is evident from the definition of a transgender person as:
“…a person whose gender does not match with the gender
assigned to that person at birth and includes trans-man or
trans-woman (whether or not such person has undergone Sex
Reassignment Surgery or hormone therapy or laser therapy
or such other therapy), person with intersex variations,
genderqueer and person having such socio-cultural identities
as kinner, hijra, aravani and jogta.” 232
From the definition, it is clear that the enactment applies to persons whose gender
does not match with that assigned to them at birth, which includes:
a. Transgender men and women;
b. Intersex persons;
c. Other genderqueer persons; and
d. Persons with socio-cultural identities such as hijras.
232 Section 2(k), Transgender Persons Act
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The word ‘genderqueer’ in Section 2(k) does not refer to sexual orientation but to
gender identity. As discussed in the preceding paragraphs, gender identity is not
the same as sexual orientation. The term ‘transgender’ is not commonly
understood as referring to persons with a sexual orientation other than
heterosexual, nor does the Transgender Persons Act use the word ‘transgender’
to include persons of a different sexuality. The Union of India’s argument that the
Transgender Persons Act applies to all queer persons including persons who are
homosexual, bisexual etc. cannot be accepted. This legislation is clearly applicable
only to those people with a gender identity that does not match the one assigned
at birth.
262. It is incorrect to state that transgender persons do not face any stigma or
discrimination post-2020, when the Transgender Persons Act came into force.
Enacting a statute does not have the same effect as waving a magic wand. For
instance, the prohibition against discrimination has not resulted in society
abstaining from discrimination overnight. The ground reality is that society
continues to discriminate against transgender persons in various ways. Consistent
respect for the rights of transgender persons may someday ensure that they are
treated as equals (as is their right) but that day is yet to arrive. Hence, the
contention of the Union of India that transgender people are no longer stigmatized
in view of the enactment of the Transgender Persons Act cannot be accepted.
Since the legislation does not apply to homosexual persons or persons of other
sexual orientations, there is no question of such persons being free from
discrimination or violence as a result of its enactment.
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263. Pursuant to the decision in NALSA (supra), Parliament enacted the
Transgender Persons Act which aims to give substance to the rights recognized
by this Court in its judgment. However, no such statute was forthcoming pursuant
to the decision in Navtej (supra). Although the primary issue in Navtej (supra) was
whether Section 377 of the IPC was constitutional, the ruling of this Court made it
amply clear that sexual orientation cannot be a valid ground for discrimination or
hostile treatment. The decision in Navtej (supra) was a clear indication of the fact
that the LBGTQ community is entitled to equal treatment before law. Parliament is
yet to enact a law to this effect. This Court is of the opinion that there is an urgent
need for a law which inter alia prohibits discrimination on the basis of sexual
orientation and gives full effect to the other civil and social rights of LGBTQ
persons. In the absence of such a law, members of the LGBTQ community will be
unable to exercise their rights and freedoms to the fullest extent and will have to
approach the courts for their enforcement on a case-by-case basis. This is not a
desirable outcome. As in this case, courts are not always equipped to deal with all
issues which are brought before them. Even if the courts are institutionally
equipped to address the grievances in the case before them, no citizen should
have to institute legal proceedings for the enforcement of their rights every time
they seek to exercise that right. This would be contrary to the very concept of the
guarantee of rights.
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c. Transgender persons in heterosexual relationships can marry under
existing law
264. We are in agreement with the submission of the Union of India that the issue
of whether transgender persons can marry ought to be decided separately from
the issues arising under the SMA in relation to homosexual persons or those of a
queer sexual orientation. Parliament has recognized the rights of the transgender
community by enacting the Transgender Persons Act. This Court is therefore
bound to apply this statute while adjudicating the issue of whether transgender
persons can marry under existing law.
I. The right against discrimination under the Transgender Persons Act
265. The right of transgender persons to equality under the Constitution and the
right against discrimination was recognized by this Court in NALSA (supra). To be
equal means to be able to live without discrimination. Section 3 of the Transgender
Persons Act codifies the prohibition against discrimination in the following terms:
“3. Prohibition against discrimination. — No person or
establishment shall discriminate against a transgender person
on any of the following grounds, namely: —
(a) the denial, or discontinuation of, or unfair treatment in,
educational establishments and services thereof;
(b) the unfair treatment in, or in relation to, employment or
occupation;
(c) the denial of, or termination from, employment or
occupation;
(d) the denial or discontinuation of, or unfair treatment in,
healthcare services;
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(e) the denial or discontinuation of, or unfair treatment with
regard to, access to, or provision or enjoyment or use of any
goods, accommodation, service, facility, benefit, privilege or
opportunity dedicated to the use of the general public or
customarily available to the public;
(f) the denial or discontinuation of, or unfair treatment with
regard to the right of movement;
(g) the denial or discontinuation of, or unfair treatment with
regard to the right to reside, purchase, rent, or otherwise
occupy any property;
(h) the denial or discontinuation of, or unfair treatment in, the
opportunity to stand for or hold public or private office; and
(i) the denial of access to, removal from, or unfair treatment
in, Government or private establishment in whose care or
custody a transgender person may be.”
(emphasis supplied)
266. As evident from Clauses (a) to (i), this provision is a catch-all provision
which seeks to eliminate discrimination against the transgender community both in
public as well as private spaces. It is worded in exceptionally broad terms:
267. The prefatory portion of Section 3 states that “no person or establishment”
shall discriminate against a transgender person. ‘Establishment’ is defined as any
body or authority established by or under a Central Act or a State Act or an authority
or body owned or controlled or aided by the Government or a local authority or a
Government company 233 and includes a Department of the Government.234 An
establishment also means any company or body corporate or association or body
of individuals, firm, cooperative or other society, association, trust, agency, or
233 As defined in Section 2 of the Companies Act, 2013.
234 Section 2(b)(i), Transgender Persons Act
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institution. 235 ‘Establishment’ therefore includes any public or private entity,
authority, or body, including any ‘body of individuals.’ Individuals are, of course,
covered by the word ‘person.’
268. Clauses (a) to (i) of Section 3 list the spheres in which transgender persons
cannot be discriminated against. They include the spheres of education,236
employment, 237 healthcare, 238 movement, 239 property, 240 public or private office, 241
care and custody. 242 It also bars any discrimination with respect to goods,
accommodation, service, facility, benefit, privilege, or opportunity which is
dedicated to the use of the public or customarily available to the public.243
269. The prefatory portion of Section 3 read with Section 2(b) delineates who the
prohibition against discrimination operates against. In other words, it defines the
actors who are prohibited from discriminating against transgender persons. The
term ‘establishment’ has been defined in the broadest possible terms to include all
manner of undertakings or groups of people. Clauses (a) to (i) of Section 3 set forth
the content of the anti-discrimination principle. They describe the actions which
amount to discrimination as well as the sphere in which the discrimination
operates. The actions which amount to discrimination vary depending upon the
sphere they refer to and they include denial, discontinuation, unfair treatment,
termination, and removal. The spheres, too, are broadly defined and extend to
235 Section 2(b)(ii), Transgender Persons Act
236 Section 3(a), Transgender Persons Act
237 Section 3(b), 3(c), Transgender Persons Act
238 Section 3(d), Transgender Persons Act
239 Section 3(f), Transgender Persons Act
240 Section 3(g), Transgender Persons Act
241 Section 3(h), Transgender Persons Act
242 Section 3(i), Transgender Persons Act
243 Section 3(e), Transgender Persons Act
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practically every aspect of life. In order to establish a violation of Section 3, an
aggrieved person would have to demonstrate:
a. That the person against whom they seek a remedy is either an establishment
as defined in Section 2(b) or a person;
b. That they have been discriminated against in one of the spheres listed by
Section 3; and
c. That the discriminatory action corresponds to that sphere (for example, a
person alleging a violation of the right to movement must prove that there has
been a denial, discontinuation of, or unfair treatment of that right244).
II. Remedies for the infringement of Section 3
270. While Section 18 of the Transgender Persons Act stipulates that certain
actions amount to offences which may attract a penalty between six months and
two years as well as a fine, violations of Section 3 attract no such penalty. In fact,
the Transgender Persons Act does not expressly provide for a remedy for the
infringement of Section 3.
271. Section 8 enjoins the appropriate Government to take steps to secure “full
and effective participation of transgender persons and their inclusion in society.”
Since clauses (a) to (i) of Section 3 are with a view to ensure the full and effective
participation of transgender persons in all arenas of life, Section 8, properly
understood, tasks the appropriate Government with ensuring that Section 3 is
244 Section 3(f), Transgender Persons Act
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complied with by all whom it governs. Rule 10(4) of the Transgender Persons
(Protection of Rights) Rules 2020 245 provides that the appropriate Government
shall take adequate steps to prohibit discrimination in any Government or private
organisation, or private and public educational institution under their purview, and
ensure equitable access to social and public spaces, including burial grounds. Rule
11 of these rules requires the appropriate Government to take adequate steps to
prohibit discrimination in any Government or private organisation or establishment
including in the areas of education, employment, healthcare, public transportation,
participation in public life, sports, leisure and recreation, and opportunity to hold
public or private office. Under Section 8 read with Rule 10(4) and Rule 11, the
appropriate Government has a duty not only to prevent discrimination against
transgender persons (by persons and public as well as private establishments) but
also to address it where it is found to take place.
272. Sections 10 the Transgender Persons Act inter alia requires establishments
to comply with the statute. This provision places a duty on establishments to
comply with Section 3 and ensure that they do not discriminate against transgender
persons. Section 11 requires establishments to set up a grievance redressal
mechanism by designating a person as the complaint officer to deal with
complaints relating to the violation of the provisions of the statute. Section 11 is
one of the ways in which a person who alleges the violation of the Transgender
Persons Act can seek a remedy. However, Section 11 only goes as far as to
245 “Transgender Persons Rules”
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provide for a mechanism by which the establishment in question can be
approached for a remedy.
273. As noticed previously, the prohibition against discrimination operates
against public as well as private bodies. If a public body or actor which falls within
the definition of ‘establishment’ in Section 2(b) of the Transgender Persons Act
infringes Section 3, it is open to the aggrieved person to invoke the extraordinary
jurisdiction of the High Courts under Article 226 of the Constitution. The High
Courts are empowered to issue directions, order, or writs to any person or authority
for the enforcement of the rights codified by Part III and for any other purpose.
The body which satisfies the definition in Section 2(b) must be a “person or
authority” under Article 226. The High Courts may exercise their jurisdiction against
a body which is performing a public duty as well. 246 While the jurisdiction of this
Court under Article 32 is not as expansive as that of the High Courts under Article
226, this Court may rely on Section 3 to guide its interpretation of the law, to enforce
the rights recognized by Part III of the Constitution.
274. Aggrieved persons may also approach the High Court under Article 226 for
the issuance of a direction, order, or writ against the appropriate Government
directing it to fulfil the mandate of Section 8 of the Transgender Persons Act. As
discussed in the preceding paragraphs, Section 8 obligates the appropriate
Government to prevent and address discrimination inter alia by private bodies. The
High Court may direct the appropriate Government to perform its duties vis-à-vis
private bodies. This is no doubt an imperfect remedy and there is a need for the
246 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
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Transgender Persons Act to provide for a remedy for its enforcement, especially
Section 3.
III. Harmonious interpretation of the laws governing marriage and
the Transgender Persons Act
275. Section 3 of the Transgender Persons Act prohibits the state from
discriminating against transgender persons. Section 20 of the Transgender
Persons Act indicates that the statute is in addition to, and not in derogation from
any other law for the time being in force. Parliament was no doubt cognizant of the
statutes governing marriage when it enacted the Transgender Persons Act and
Section 3(e) in particular.
276. The laws which govern marriage in the country specify conditions which the
bride and the bridegroom must satisfy for their marriage to be recognized. This is
true of personal laws 247 as well as the SMA. 248 The structure of these enactments
also regulates marriage between a husband and a wife. 249 They use the words
“bride” and “bridegroom,” “wife” and “husband,” “male” and “female,” or “man” and
“woman.” These legislations regulate heterosexual marriages in India. Laws which
are incidental to marriage such as the DV Act, the Dowry Prohibition Act 1961 or
Section 498A of the IPC seek to address the hetero-patriarchal nature of the
relationship between a man and a woman.
247 See, for instance, Section 5, HMA; Section 60, Indian Christian Marriage Act 1872; Section 3, Parsi Marriage
and Divorce Act 1936
248 Section 4, SMA
249 See, for instance, Section 2, Dissolution of Muslim Marriages Act 1939
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277. The gender of a person is not the same as their sexuality. A person is a
transgender person by virtue of their gender identity. A transgender person may
be heterosexual or homosexual or of any other sexuality. If a transgender person
is in a heterosexual relationship and wishes to marry their partner (and if each of
them meets the other requirements set out in the applicable law), such a marriage
would be recognized by the laws governing marriage. This is because one party
would be the bride or the wife in the marriage and the other party would be the
bridegroom or the husband. The laws governing marriage are framed in the context
of a heterosexual relationship. Since a transgender person can be in a
heterosexual relationship like a cis-male or cis-female, a union between a
transwoman and a transman, or a transwoman and a cisman, or a transman and
a ciswoman can be registered under Marriage laws. The transgender community
consists of inter alia transgender men and transgender women. A transgender man
has the right to marry a cisgender woman under the laws governing marriage in
the country, including personal laws. Similarly, a transgender woman has the right
to marry a cisgender man. A transgender man and a transgender woman can also
marry. Intersex persons who identify as a man or a woman and seek to enter into
a heterosexual marriage would also have a right to marry. Any other interpretation
of the laws governing marriage would be contrary to Section 3 of the Transgender
Persons Act and Article 15 of the Constitution.
278. In Kanailal Sur v. Paramnidhi Sadhu Khan, 250 this Court held that the first
and primary rule of construction was that the intention of the legislature must be
250 AIR 1957 SC 907
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found in the words used by the legislature itself. The terms “bride” and
“bridegroom,” “wife” and “husband,” “male” and “female,” and “man” and “woman”
in the statutes which regulate marriage cannot be read as governing marriages
between cisgender men and cisgender women alone. Nothing in these statutes
indicates that their intended application is solely to cisgender men and cisgender
women. The plain meaning of the gendered terms used in these statutes indicates
transgender persons in heterosexual relationships fall within their fold. The
contention of the Union of India that “biological” men and women alone fall within
the ambit of these statutes cannot be accepted. No law or tool of interpretation
supports the interpretation proposed by the Union of India. The provisions on the
prohibited degrees of relationship in the laws governing marriage continue to apply.
The judgment in NALSA (supra) also recognized the importance of the right of
transgender persons to marry. Moreover, State Governments have formulated and
implemented schemes which encourage and support transgender persons vis-à-
vis marriage. 251
279. In Arunkumar v. Inspector General of Registration, 252 the first petitioner
was a man and the second petitioner was a woman who happened to be
transgender. They married each other at a temple in Tuticorin and sought to have
their marriage registered by the state, which refused. They then approached the
Madras High Court under its writ jurisdiction. The Court held that:
251 For instance, the Kerala State Government announced Rs. 30,000/- by way of ‘marriage assistance’ to couples
where at least one person was a transgender person. Government of Kerala, Social Justice Department, ‘Marriage
assistance for legally married Transgender couples’ <http://sjd.kerala.gov.in/scheme-
info.php?scheme_id=IDE1MnNWOHVxUiN2eQ==>
252 2019 SCC OnLine Mad 8779
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a. The expression “bride” in the HMA cannot have a static and immutable
meaning and that statutes must be interpreted in light of the legal system
in its present form; and
b. The fundamental right of the petitioners under Article 25 was infringed.
The Court directed the concerned respondent to register the marriage solemnized
between the petitioners.
xii. The conditions for the exercise of the rights of LGBTQ persons
a. The right of queer persons under the Mental Healthcare Act
280. The first segment of this judgment detailed how the families or relatives of
queer persons compel them to undergo “conversion” therapies (to “convert” their
sexual orientation from homosexual to heterosexual) or make them marry a person
of the opposite sex to “cure” their homosexuality or for other reasons. Other
pseudo-medical treatments are similarly designed to “cure” queerness. Such
practices violate the right to health of queer persons as also their right to autonomy
and dignity. In terms of Article 5 of the Universal Declaration of Human Rights and
Article 7 of the International Covenant on Civil and Political Rights, no one shall be
subjected to torture or to cruel, inhuman or degrading treatment or punishment.
“Conversion” therapies and other “treatments” which are aimed at altering sexual
orientation amount to cruel, inhuman and degrading treatment of queer persons.
They have the effect of denying their full humanity. The mental well-being suffers
to no end because cruel techniques are used in these so-called treatments. The
treatment is by its very nature cruel. It is the duty of the state to ensure that these
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inhumane practices do not continue. The deleterious effects of discrimination on
the mental health of queer persons was also noticed by this Court in Navtej (supra).
Other segments of this judgment discussed instances of queer persons and
couples being driven to die by suicide as a result of the discrimination and violence
meted out to them. This phenomenon is undoubtedly related to the mental health
of queer persons and the state is equally under an obligation to prevent suicides
because of one’s gender identity or sexual orientation. Section 29 of the Mental
Healthcare Act stipulates that:
“(1) The appropriate Government shall have a duty to plan,
design and implement programmes for the promotion of
mental health and prevention of mental illness in the country.
(2) Without prejudice to the generality of the provisions
contained in sub-section (1), the appropriate Government
shall, in particular, plan, design and implement public health
programmes to reduce suicides and attempted suicides in the
country.”
The programmes for the promotion of mental health (envisaged by Section 29(1))
must include provisions for the mental health of queer persons. Programmes to
reduce suicides and attempted suicides (envisaged by Section 29(2)) must include
provisions which tackle queer identity and oppression arising from that identity as
causes for suicidal tendencies or feelings. We direct the Union Government as well
as the State Governments or governments of Union Territories (where they exist)
to carry out the mandate of Section 29 in terms of the observations in this
paragraph and to include appropriate modules or provisions which address the
unique concerns of the queer community.
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281. In exercise of the rights to dignity, autonomy, privacy and health an
individual (regardless of their gender identity) may choose to enter into a union with
a person (who may be of the same sex as them). Once they enter into an
relationship as life partners, a couple has the right and the freedom to determine
the significance of that relationship as well as its consequences. A denial of this
freedom would be a denial of the many facets of Article 21.
b. The right of LGBTQ persons to freedom from coercion from their
families, the agencies of the state, and other persons
282. The right to enter into a union would be an illusion without the conditions
which permit the unrestricted exercise of that right. Various parts of this judgment
have detailed the violence and discrimination meted out to members of the LGBTQ
community, either because of their gender identity or because of their sexual
orientation. One form of this violence is that society often attempts to prevent
LGBTQ persons from being with their partner, in a short-term relationship, a long-
term relationship, a relationship where they choose to live together or any other
kind of union. This happens in different ways – the couple may be forcibly
separated from one another, their families may file complaints with the police which
lead to the registration of FIRs and the consequent harassment of one or both of
them, or they may be married off to third parties without their consent. The families
of LGBTQ persons as well as the police are the primary actors in such violence.
283. The fundamental rights and freedoms codified by the Constitution demand
that the LGBTQ community be left alone so that its members can live their lives as
they see fit, in accordance with law. This Court has discussed these rights and
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freedoms in detail in this judgment. It is the duty of the state machinery (acting
through any authority including the police) to protect these rights instead of
participating in their violation. Unfortunately, the police often acts in concert with
the parents of LGBTQ persons to prevent the latter from exercising their rights.
This Court finds this to be unacceptable.
284. In Mansur Rahman v. Superintendent of Police, Coimbatore District,253
the petitioner was a man who had married a woman who happened to be
transgender. He claimed that his parents and some persons who belonged to a
political outfit were harassing and threatening him and approached the Madras
High Court seeking police protection. The Court allowed the petition and directed
the police to ensure that no harm befalls the petitioner and his wife.
285. In Latha v. Commissioner of Police, 254 the Madras High Court dismissed
a writ petition for the issuance of a habeas corpus filed by the petitioner for the
production of her sibling, who happened to be a transgender person. The Court
found that the sibling had attained the age of majority and had voluntarily joined
other transgender persons.
286. Sushma v. Commissioner of Police 255 concerned a lesbian couple whose
families opposed their relationship. Both their families filed complaints with the
police that they were missing and an FIR was registered. The police visited the
couple and interrogated them. The couple then filed a writ petition before the
Madras High Court seeking a direction to the police not to harass them as well as
253 2018 SCC OnLine Mad 3250
254 2021 SCC OnLine Mad 7495
255 WP 7248 of 2021, Madras High Court
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for protection from any form of threat or danger to their safety and security from
their families. The Court directed the parties to undergo counselling (and the judge
personally underwent counselling to understand queerness). Counsel informed the
Court that the FIR would be closed and the parents agreed to let their daughters
live their lives as they wished to. The Court also issued directions to ensure the
protection of LGBTQ couples.
287. We affirm the approach adopted in these cases, which protects the
fundamental rights of LGBTQ persons.
xiii. The right of queer persons to adopt children
a. Challenge to the Adoption Regulations
288. The JJ Act was enacted to consolidate and amend the law catering to the
basic needs of children. Chapter VIII (Sections 56 to 73) deals with the provisions
relating to adoption. Section 2(49) of the JJ Act defines “prospective adoptive
parents” to mean a person or persons eligible to adopt a child according to the
provisions of Section 57. Section 57 prescribes the eligibility criteria for prospective
adoptive parents:
“57. Eligibility of prospective adoptive parents.—
(1) The prospective adoptive parents shall be physically fit,
financially sound, mentally alert and highly motivated to adopt
a child for providing a good upbringing to him.
(2) In case of a couple, the consent of both the spouses for
the adoption shall be required.
(3) A single or divorced person can also adopt, subject to
fulfilment of the criteria and in accordance with the provisions
of adoption regulations framed by the Authority.
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(4) A single male is not eligible to adopt a girl child.
(5) Any other criteria that may be specified in the adoption
regulations framed by the Authority.”
(emphasis supplied)
289. Section 57(1) prescribes general conditions to do with the physical, mental,
and financial well-being of the prospective parents as well as their motivations.
Sub-Section (2) states that the consent of both the parties is required if a couple is
adopting a child. Sub-Sections (3) and (4) of Section 57 state that single and
divorced persons are not precluded from adopting. The only restriction is that a
single male cannot adopt a girl child.
290. The Ministry of Women and Child Development notified the Regulations
framed by the Central Adoption Resource Authority 256 in exercise of the powers
conferred under Section 68(c) read with Section 2(3) of the JJ Act. Regulation 5 of
the Adoption Regulations prescribes the eligibility criteria for prospective adoptive
parents. The relevant portion of the provision is extracted below for reference:
“5. Eligibility criteria for prospective adoptive parents.―
(1)The prospective adoptive parents shall be physically,
mentally, emotionally and financially capable, they shall not
have any life threatening medical condition and they should
not have been convicted in criminal act of any nature or
accused in any case of child rights violation.
(2) Any prospective adoptive parent, irrespective of their
marital status and whether or not they have biological son or
daughter, can adopt a child subject to the following, namely:―
256 “CARA”
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(a) the consent of both the spouses for the adoption shall be
required, in case of a married couple;
(b) a single female can adopt a child of any gender;
(c) a single male shall not be eligible to adopt a girl child.
(3) No child shall be given in adoption to a couple unless they
have at least two years of stable marital relationship except in
the cases of relative or step-parent adoption.”
(emphasis supplied)
291. Clause (1) of Regulation 5 states that prospective adoptive parents must be
physically, mentally, emotionally, and financially stable. In addition, they must also
not have any life-threatening medical condition or should not have been convicted
in a criminal act or should not have been accused in a case concerning a violation
of child rights. The general conditions in clause (1) are aimed at securing the best
interest of the child. The conditions focus on physical, emotional, and financial
stability. Clause (2) stipulates that any person irrespective of their marital status
and irrespective of whether they already have a biological child can adopt. To this
extent, the provision is expansive. However, clause 2(a) states that: (a) in case of
a married couple, the consent of both the spouses is required; and (b) though a
single female can adopt a child of any gender, a single male shall not be eligible to
adopt a girl child. Clause (3) prescribes a further restriction on the conditions to be
met before someone can adopt. The provision states that a child shall be given in
adoption to a couple only if they have at least two years of a stable marital
relationship (except in cases of relative or step-parent adoption).
292. Though Regulation 5(2)(a) taken alone does not preclude unmarried
couples from being prospective adoptive parents, a combined reading of
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Regulations 5(2)(a) and 5(3) elucidates that: (a) only married couples can be
prospective adoptive parents; and (b) such couples must be in “at least two years
of stable marital relationship”. A reading of the Adoption Regulations indicates that
while a person can in their individual capacity be a prospective adoptive parent,
they cannot adopt a child together with their partner if they are not married.
293. The Adoption Regulations are framed in exercise of the power conferred
under the JJ Act. Section 57(5) of the JJ Act grants the Authority (which means
CARA in terms of Section 2(3) of the JJ Act) the power to specify any other criteria.
Set out below is a table comparing the criteria to be prospective adoptive parents
prescribed under the JJ Act and the Adoption Regulations:
JJ Act Adoption Regulations
The prospective adoptive parents In addition to the criteria prescribed under
must be physically fit, financially the JJ Act, the prospective parents should
sound, mentally alert and highly not have been convicted of a criminal act
motivated to provide a good and should not have a life-threatening
upbringing. medical condition.
Couples can adopt. The consent of Only married couples can adopt. A
both spouses is required in case a married couple should have been in two
couple chooses to adopt. years of stable marital relationship to be
eligible to adopt.
A single male is not eligible to adopt A single male is not eligible to adopt a girl
a girl child. child but a single female is eligible to
adopt a child of any gender.
294. The petitioners submitted that the Adoption Regulations are ultra vires the
provisions of the JJ Act because they bar unmarried couples from adopting. It was
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also submitted that the distinction between married and unmarried persons for the
purpose of adoption is violative of Article 14 of the Constitution.
295. It is settled law that delegated legislation must be consistent with the parent
act and must not exceed the powers granted under the parent Act (JJ Act).257 The
rule making authority must exercise the power for the purpose for which it is
granted. The provisions of the delegated legislation will be ultra vires if they are
repugnant to the parent Act or exceed the authority which is granted by the parent
Act. Section 57(5) delegates to CARA the power to prescribe any other criteria in
addition to the criteria prescribed by the provision. However, in view of the line of
cases on subordinate law-making, this power cannot be read expansively. CARA’s
power to prescribe additional criteria is limited by the express provisions and
legislative policy of the JJ Act.
296. The Adoption Regulations place two restrictions on a couple who wish to
adopt: first, the couple must be married, and second, the couple must have been
in a stable marital relationship. We will now determine if the prescription of these
two additional conditions is violative of the provisions of the JJ Act and the
Constitution.
I. Regulation 5(3) of the Adoption Regulations exceeds the scope of
the JJ Act
297. Section 3 of the JJ Act prescribes the general principles to be followed in
the administration of the Act. The provision, inter alia, includes the principle of best
257 See J K Industries Limited v. Union of India, (2007) 13 SCC 673; Indian Express Newspapers (Bombay) P Ltd.
V. Union of India, (1985) 1 SCC 641
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interest, which stipulates that all the decisions regarding the child shall be based
on the best interest of the child which will help the child develop their full potential.
298. The provisions of the JJ Act promote the best interest of the child and ensure
their development.258 In fact, the eligibility criteria prescribed in Section 57 are an
extension of that principle. The legislative intent behind prescribing the conditions
of physical and mental fitness is to ensure that the parents are able to prioritise the
well-being of the child. Similarly, the condition requiring the consent of both
spouses ensures that the child is able to receive the attention and care of both
partners. The intent is not to give a child for adoption to a couple where one of
them is unwilling to take up the responsibility of being a parent. Similarly, the
criterion prohibiting a single male from adopting a girl child is in the State’s interest
of preventing child sexual abuse. It can be garnered that the State has prescribed
the criteria in Section 57 keeping in mind the welfare of the child.
299. Section 57(2) does not stipulate that only married couples can adopt. It
states that “in case of a couple” the consent of both the spouses must be secured.
This is a clear indicator that adoption by a married couple is not a statutory
requirement. Section 57(2) provides that the consent of both the parties must be
received if the prospective adoptive parents are in a married relationship. The
usage of the phrase spouse in Section 57(2) does not mean that it excludes
unmarried couples from adopting.
258 See Gaurav Jain v. Union of India, (1997) 8 SCC 114; Karan v. State of M.P., (2023) 5 SCC 504; Barun Chandra
Thakur v. Bholu, 2022 SCC OnLine SC 870; Shilpa Mittal v. State (NCT of Delhi), (2020) 2 SCC 787
209
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300. However, Regulation 5(3) of the Adoption Regulations bars unmarried
partners from being prospective adoptive parents. These Regulations only permit
persons to adopt in an individual capacity and not jointly as an unmarried couple.
Regulation 5(2) states that every person irrespective of whether they are married
or unmarried will be able to be prospective adoptive parents. The subsequent
criteria in clause (a) (that is, the requirement for the consent of both spouses if they
are married) does not exclude an unmarried couple from adopting. It only states
that if the couple is married, then the consent of both the parties shall be secured.
However, Regulation 5(3) in express terms excludes unmarried couples from
adopting by prescribing the condition that the couple must have been in two years
of a ‘stable marital relationship.’ As observed in the previous paragraph, the JJ
Act does not preclude unmarried couples from adopting. Though Section 57 of the
JJ Act grants CARA the power to prescribe additional criteria, the criteria must not
exceed the scope of the legislative policy. Neither the general principles guiding
the JJ Act nor Section 57 in particular preclude unmarried couples from adopting
a child. In fact, all the other criteria ensure the child’s best interests. The Union of
India has not proved that precluding unmarried couples from adopting a child (even
though the same people are eligible to adopt in their individual capacity) is in the
child’s best interests. Thus, CARA has exceeded its authority by prescribing an
additional condition by way of Regulation 5(3), which is contrary to tenor of the JJ
Act and Section 57 in particular.
301. Further, the usage of the phrase ‘stable’ in Regulation 5(3) is vague. It is
unclear if the provision creates a legal fiction that all married relationships which
have lasted two years automatically qualify as a stable relationship or if there are
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specific characteristics in addition to those prescribed in Regulation 5(1) (that is,
physical, mental, and emotional wellbeing) which would aid in the characterization
of a married relationship as a stable one. Hence, Regulation 5(3) exceeds the
scope of the JJ Act.
II. Regulation 5(3) of the Adoption Regulations violates Article 14 of
the Constitution
302. Regulation 5(3) of the Adoption Regulations has classified couples into
married and unmarried couples for the purpose of adoption. The intent of CARA to
identify a stable household for adoption is discernible from Regulation 5(3).
However, CARA has proceeded under the assumption that only married couples
would be able to provide a stable household for the child. Such an assumption is
not backed by data. Although married couples may provide a stable environment,
it is not true that all couples who are married will automatically be able to provide
a stable home. Similarly, unmarried relationships cannot be characterized as
fleeting relationships which are unstable by their very nature. Marriage is not
necessarily the bedrock on which families and households are built. While this is
the traditional understanding of a family, we have already elucidated above that
this social understanding of a family unit cannot be used to deny the right of other
couples who are in domestic partnerships or live-in relationships to found a family.
303. It is now a settled position of law that classification per se is not
discriminatory and violative of Article 14. Article 14 only forbids class legislation
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and not reasonable classification. A classification is reasonable, when the following
test is satisfied: 259
a. The classification must be based on an intelligible differentia which
distinguishes the persons or things that are grouped, from others left out of
the group; and
b. The differentia must have a rational nexus to the object sought to be achieved
by the statute.
304. The Adoption Regulations use marriage as a yardstick to classify couples.
There is an intelligible differentia in using marriage as an indicator to classify
couples in the sense that married couples can easily be distinguished from
unmarried couples. However, the differentia does not have a rational nexus with
the object sought to be achieved by the CARA Regulations which is to ensure that
the best interest of the child is protected. Placing a child in a stable family is
undoubtedly in pursuance of a child’s interest. However, the respondents have not
placed any data on record to support their claim that only married relationships can
provide stability. It is true that separating from a married partner is a cumbersome
process when compared to separating from a partner with whom a person is in a
live-in relationship. This is because separation from a married partner is regulated
by the law while live-in relationships are unregulated by law (other than for the
limited purpose of domestic violence). For instance, the law deters a person from
securing a divorce immediately by prescribing conditions such as a six-month
259 See Anwar Ali Sarkar v. State of West Bengal, 1952 SCR 284
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waiting period after a petition for divorce by mutual consent is filed. 260 Merely
because a marriage is regulated by the law, it cannot be assumed that marriage
alone or that every marriage accords stability to a relationship. Similarly, it can also
not be inferred that couples who are not in a married relationships are not ‘serious’
about the relationship. The stability of the household depends on various factors
such as the effort and involvement of the partners in establishing and running a
household, creating a safe space at home, creating a healthy work-life balance,
and a household where mental, physical, and emotional violence is not inflicted on
one another. There is no single form of a stable household. There is no material
on record to prove the claim that only a married heterosexual couple would be able
to provide stability to the child. In fact, this Court has already recognized the
pluralistic values of our Constitution which guarantee a right to different forms of
association.
305. The Union of India is required to submit cogent material to support its claim
that only married partners are able to provide a stable household. However, it has
not done so. The Union of India has submitted four studies titled “Child Attention-
Deficit Hyperactivity Disorder (ADHD) in same sex parents families in the United
States: Prevalence and Comorbidities,” 261 “High School graduation rates amongst
children of same sex households,” 262 “Children in planned lesbian families:
260 Section 13(B) (2) of the Hindu Marriage Act 1955; A Constitution bench of this Court in Shilpa Sailesh v. Varun
Sreenivasan260 held that this Court in exercise of its powers under Article 142 can dissolve a marriage on its
irretrievable breakdown dispensing of the six month cooling period prescribed by law in certain circumstances.
261 D Paul Sullins, Child Attention-Deficit Hyperactivity Disorder (ADHD) in same-sex parent families in the United
States: Prevalence and Comorbidities, British Journal of Medicine & Medical Research 6(10):987-998, 2015
262 Douglas W.Allen, High School graduation rates among children of same sex households, Rev Econ Household
(2013) 11:635-658
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stigmatization, psychological adjustment and protective factors,”263 and “Children
in three contexts: Family, Education and Social Development.” 264 The studies
submitted by Ms. Aishwarya Bhati, learned ASG conclude that non-heterosexual
couples cannot effectively take up the role of parents. The studies neither indicate
that only married (and not unmarried) couples can be in a stable relationship nor
that only married couples have the ability to effectively parent children. Thus, the
Union of India has not submitted any cogent material to substantiate the claim that
unmarried couples cannot be in a stable relationship. The Union of India has not
been able to demonstrate that a single parent who adopts a child will provide a
more stable environment for a child who is adopted than an unmarried couple.
For all these reasons, Regulations 5(2)(a) and 5(3) of the Adoption Regulations
are violative of Article 14 of the Constitution.
306. Further, in terms of Section 58(2) of the JJ Act, the Specialised Adoption
Agency is required to prepare a home study report of the prospective adoptive
parents. It is only when the prospective adoptive parents are found eligible after
the home study report that a child is referred to them for adoption. Section 58(5)
provides that the progress and wellbeing of the child shall be ascertained after the
adoption. The procedure for adoption provides for the assessment of a couple and
their capacity and ability to care for a child. Any areas of concern relating to a
couple’s capability as a parent would be discernible in the home study. This is true
263 Henry M.W Bos & Frank Van Balen, Children in planned lesbian families: Stigmatisation, psychological
adjustment and protective factors, Culture, Health and Sexuality: An International Journal for Research,
Intervention and Care, 10:3, 221-236.
264 Solirios Sarantakos, Children in three contexts: Family, education, and social development, Children Australia
Volume 21, No. 3, 1996
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of both heterosexual couples as well as queer couples. The home study must
consider the couple’s capability without reference to their sexual orientation.
III. Regulation 5(3) of the Adoption Regulations violates Article 15 of
the Constitution
307. Ms. Aishwarya Bhati referred to the judgment of this Court in Shabnam
Hashmi v. Union of India265 to argue that the fundamental right to adopt is not
recognised under the Constitution and thus, the exclusion of queer persons from
the scheme for adoption is not violative of Part III of the Constitution. In Shabnam
Hashmi (supra), a petition was filed under Article 32 of the Constitution seeking a
declaration that the Constitution guarantees the right to adopt, and in the
alternative, requesting the court to law down guidelines enabling adoption by
persons irrespective of religion, caste, and creed. This Court disposed of the
petition by observing that the adjudication of the question of whether adoption must
be elevated to the status of a fundamental right must await the “dissipation of
conflicting thought processes”:
“16. […] While it is correct that the dimensions and
perspectives of the meaning and content of the fundamental
rights are in a process of constant evolution as is bound to
happen in a vibrant democracy where the mind is always free,
elevation of the right to adopt or to be adopted to the status of
a fundamental right, in our considered view, will have to await
a dissipation of the conflicting thought processes in this
sphere of practices and belief prevailing in the country. The
legislature which is better equipped to comprehend the mental
preparedness of the entire citizenry to think unitedly on the
issue has expressed its view, for the present, by the
enactment of the JJ Act 2000 and the same must receive due
respect. … All these impel us to take the view that the present
is not an appropriate time and stage where the right to adopt
265 (2014) 4 SCC 1
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and the right to be adopted can be raised to the status of a
fundamental right and/or to understand such a right to be
encompassed by Article 21 of the Constitution.”
308. The observations of this Court in Shabnam Hashmi (supra) that it is not the
appropriate time to recognise a right to adopt and to be adopted does not affect
the case of the petitioners. The petitioners’ challenge to Regulation 5(3) of
Adoption Regulations is mounted on the ground that is discriminates against the
queer community. The challenge is not on the ground that it violates the right to
adopt nor is it the petitioners case that they have a fundamental right to adopt. The
crux of the petitioners case is that Regulation 5(3) discriminates against the queer
community because it disproportionately affects them.
309. Regulation 5(3), though facially neutral, indirectly discriminates against
atypical unions (such the relationship between non-heterosexual partners) which
have not been recognised by the State. Queer marriages have not been
recognized by the state and queer persons in atypical unions cannot yet enter into
a marriage which is recognized by the state. Though the additional criteria
prescribed by the Adoption Regulations would also affect a heterosexual person’s
eligibility to adopt a child, it would disproportionately affect non-heterosexual
couples. 266 This is because the State has not conferred legal recognition to the
unions between queer persons, in the form of marriage. Consequently, an
unmarried heterosexual couple who wishes to adopt a child has the option of
marrying to meet the eligibility criteria for adoption. However, this option is not
available to queer couples. When Regulation 5(3) is understood in light of this
266 See Lt. Col. Nitisha v. Union of India, 2021 SCC OnLine SC 261
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position, a queer person who is in a relationship can only adopt in an individual
capacity. This exclusion has the effect of reinforcing the disadvantage already
faced by the queer community.
310. The National Commission for Protection of Child Rights (‘NCPCR’) has
submitted that excluding queer persons from adopting children is backed by cogent
reasons. As stated above, Ms. Aishwarya Bhati submitted four studies to support
the claim that permitting non-heterosexual couples to adopt is not in the best
interest of the child. The paper titled “Child Attention-Deficit Hyperactivity Disorder
(ADHD) in same-sex parent families in the United States: Prevalence and
Comorbidities,” 267 examines a sample of 1,95,240 children including 512 children
with same-sex parents. The paper concluded that children with same-sex parents
in the United States were twice as likely to suffer from ADHD than children with
opposite-sex parents. The paper titled “High School graduation rates among
children of same-sex households” 268 uses the 2006 Canada census to study high
school graduation probabilities of children of parents belonging to the queer
community. The paper concluded that children living with parents belonging to the
queer community perform more poorly in school when compared to children living
with married heterosexual parents. The paper titled “Children in planned lesbian
families: stigmatisation, psychological adjustment and protective factors” 269
conducted a study to assess the extent to which children between eight and twelve
267 D Paul Sullins, Child Attention-Deficit Hyperactivity Disorder (ADHD) in same-sex parent families in the United
States: Prevalence and Comorbidities, British Journal of Medicine & Medical Research 6(10):987-998, 2015
268 Douglas W.Allen, High School graduation rates among children of same sex households, Rev Econ Household
(2013) 11:635-658
269Henry M.W Bos & Frank Van Balen, Children in planned lesbian families: Stigmatisation, psychological
adjustment and protective factors, Culture, Health and Sexuality: An International Journal for Research,
Intervention and Care, 10:3, 221-236.
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years in planned lesbian families in the Netherlands experience stigmatization. For
the purpose of this assessment, data was collected from questionnaires filled out
by mothers and by children. It was concluded that higher levels of stigmatization
were associated with such children. Boys were found to be more hyperactive and
girls were found to suffer from a lower self-esteem. The paper titled “Children in
three contexts: Family, education, and social development” 270 collected a sample
of 174 primary school children living with married heterosexual couples, cohabiting
heterosexual couples, and homosexual couples to explore the relationship
between family environment and the behaviour of primary school children. The
study concluded that the children of married couples are more likely to do well at
school, in academic and social terms, than children of cohabiting heterosexual and
homosexual couples. However, the author cautions that there may be additional
factors such as biases which the teachers may have held while assessing the
children, based on their cultural beliefs.
311. On the other hand, Dr. Menaka Guruswamy appearing for the intervenor,
Delhi Commission for Protection of Child Rights argued that there is no evidence
or empirical data to show that non-heterosexual couples are unfit to be parents or
that the psychosocial development of children brought up by same-sex couples will
be compromised. The learned counsel relied on the paper titled “Lesbian and Gay
Parenting” by the American Psychological Association 271 in which it was concluded
that the home environment provided by non-heterosexual couples is not different
from that provided by heterosexual parents. In another study titled “Same-sex
270 Solirios Sarantakos, Children in three contexts: Family, education, and social development, Children Australia
Volume 21, No. 3, 1996
271 American Psychological Association, ‘Lesbian and Gay Parenting’
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parenting in Brazil and Portugal: An integrative review”,272 the authors found that
the adoption of children by one of the individuals in a non-heterosexual partnership
because of the delay in the recognition of same-sex marriage became a weakness
to such families on the issues of health, education, and other responsibilities. In
another paper titled, “Academic achievement of children in same and different sex
parented families: A population-level analysis of linked administrative data from the
Netherlands”, 273 it was concluded that the children raised by same-sex couples
performed at least as well as children of heterosexual parents in socio-political
environments characterised by high levels of legislative or public support, and that
the children living in same-sex parented families experience no educational
disadvantage relative to children living in heterosexual parented families. The
learned counsel also relied on a study which was conducted based on the data
derived from Netherlands where same-sex marriages were formalised in 2011. 274
The study found that the academic results of children indicated that children raised
by non-heterosexual parents outperformed children raised by heterosexual parents
by 0.139 standard deviations, and that they are 4.8 percentage points more likely
to graduate. The studies which have been submitted by the counsel on either sides
support their respective arguments. The studies submitted by Ms Bhati support the
argument that even if Regulation 5(3) discriminates against the queer community,
it is justified because the interest of the child would suffer if they are parented by
272 Biasutti, CM; Nascimento CRR, Gato J, Bortolozzo ML, Same-sex parenting in Brazil and Portugal: An
integrative review. Research, Society and Development, [S. l.], v. 11, n. 16,
273 Kabátek J, Perales F. Academic Achievement of Children in Same- and Different-Sex-Parented Families: A
Population-Level Analysis of Linked Administrative Data From the Netherlands. Demography. 2021 Apr
1;58(2):393-418
274Deni Mazrekaj, Kristof De Witte, Sofie Cabus, School outcomes of children raised by same-sex parents:
Evidence from administrative Panel Data, American Sociological Review Volume 85 Issue 5
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queer partners. On the other hand, the studies submitted by Dr. Menaka
Guruswamy support the argument that the interest of the child parented by persons
belonging to the queer community does not suffer, and if it does it is not because
persons with queer identity are ‘bad’ parents but because the State by not
recognising queer relationships treats them as second-class citizens.
312. The burden which is required to be discharged by the State for an Article 14
violation and an Article 15 violation vary. While Article 14 prohibits unreasonable
classification, Article 15 prohibits discrimination based on identity. The
interpretation of Article 15 has evolved over the years to incorporate a more
substantial effects-based approach towards the anti-discrimination principle. 275
The test is whether the law discriminates against persons in effect, based on the
identities covered in Article 15. While the Court is undertaking an exercise to
determine if Article 14 is violated, the State is required to submit cogent evidence
to support its claim that the classification holds a nexus with the object sought to
be achieved. On the other hand, there is no justification for discrimination based
on identities which are protected under Article 15. State interests (even if
established which in this case it has not been) cannot be used to justify
discrimination once the Court holds that the provision in effect discriminates based
on identity. Of course, while the Court is assessing if the provision under challenge
discriminates in effect based on identity, it must also evaluate whether the provision
in question is a protective provision meant to achieve the guarantee of substantive
equality.
275 See Navtej (supra)
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313. For example, it cannot be argued that the Transgender Persons Act is
violative of Article 15 because it provides special provisions to safeguard the
interest of the transgender community in exclusion of cis-gender persons. A
classification based on the identities protected by Article 15 does not automatically
lead to discrimination. This Court in State of Kerala v. NM Thomas 276 held that
protective provisions (such as for reservation) were not an exception to the anti-
discrimination law but are in furtherance of the principle of equality (of which anti-
discrimination is a facet). The Court examines if the law is discriminatory not based
on whether there is a classification based on the identity but whether there is
discrimination based on the identity. While doing so it determines if it is a
protective provision. However, once it is established that the law discriminates
based on protected identities, it cannot be justified based on state interest. Thus,
once it is proved that the law discriminates based on sexual orientation as in this
case (because it disproportionately affects queer persons), no amount of evidence
or material submitted by the State that such discrimination is based on state’s
interest can be used as a justification.
314. We are of the opinion that if the children of persons from the queer
community suffer it is because of the lack of recognition (at a legal and social plane)
to same-sex unions. In fact, one of the studies submitted by Ms. Aishwarya Bhati
highlights this aspect. 277 The stigmatization (if any) faced by the children parented
by persons of the queer community is because of the inherent biases that the
276 (1976) SCC 2 310
277 Solirios Sarantakos, Children in three contexts: Family, education, and social development, Children Australia
Volume 21, No. 3, 1996
221
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society holds against the queer community, and in this context, biases about their
fitness to be parents. Thus, it is in the interest of children that the State endeavours
to take steps to sensitise the society about queer relationships.
315. In fact, the Indian Psychiatric Society which consists of 7000 mental health
professionals in India released a statement stating that children brought up by non-
heterosexual parents may face stigmatization and that it is important that the civic
society is adequately sensitized:
“The Indian Psychiatric Society is very cognizant that a child
adopted into a same gendered family may face challenges,
stigma and/or discrimination along the way. It is imperative
that, once legalized, such parents of the LGBTQA spectrum
bring up the children in a gender neutral, unbiased
environment. It is also of utmost importance, that the family,
community, school and society in general are sensitized to
protect and promote the development of such a child, and
prevent stigma and discrimination at any cost.”
316. The law cannot make an assumption about good and bad parenting based
on the sexuality of individuals. Such an assumption perpetuates a stereotype
based on sexuality (that only heterosexuals are good parents and all other parents
are bad parents) which is prohibited by Article 15 of the Constitution. This
assumption is not different from the assumption that individuals of a certain class
or caste or religion are ‘better’ parents. In view of the above observations, the
Adoption Regulation is violative of Article 15 for discriminating against the queer
community.
317. In view of the observations above, Regulation 5(3) is ultra vires the parent
Act for exceeding the scope of delegation and for violating Articles 14 and 15 of
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the Constitution. It is settled that courts have the power to read down a provision
to save it from being declared ultra vires. 278 Regulation 5(3) is read down to exclude
the word “marital”. It is clarified that the reference to a ‘couple’ in Regulation 5
includes both married and unmarried couples including queer couples. In bringing
the regulations in conformity with this judgment, CARA is at liberty to ensure that
the conditions which it prescribes for a valid adoption subserve the best interest
and welfare of the child. The welfare of the child is of paramount importance.
Hence, the authorities would be at liberty to ensure that the familial circumstances
provide a safe, stable, and conducive environment to protect the material well-
being and emotional sustenance of the child. Moreover, CARA may insist on
conditions which would ensure that the interest of the child would be protected
even if the relationship of the adoptive parents were to come to an end in the future.
Those indicators must not discriminate against any couple based on sexual
orientation. The criteria prescribed must be in tune with constitutional values. The
principle in Regulation 5(2)(a) that the consent of spouses in a marriage must be
obtained if they wish to adopt a child together is equally applicable to unmarried or
queer couples who seek to jointly adopt a child.
318. The forms in Schedules II (child study report), III (medical examination report
and classification of special needs of a child), VI (online registration form) and VII
(home study report) use the phrases “male applicant” and “female applicant”. We
have already concluded above that both married and unmarried couples can adopt
under Regulation 5 of the Adoption Regulations. After the judgments of this Court
278 Gita Hariharan v. Reserve Bank of India, (1999) 2 SCC 228; State Bank of Travancore v. Mohammed Khan
(1981) 4 SCC 82; Indra Das v. State of Assam, (2011) 3 SCC 380
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Navtej (supra) and NALSA (supra) recognising non-binary identity and their
freedom to choose a partner irrespective of the sexual identity, reference to a
‘couple’ cannot be restricted to heterosexual relationships. It will include all forms
of queer relationships. The phrases “male applicant” and “female applicant (in case
of applicant couples)” in Schedules II, III, VI and VII of the Adoption Regulations
limit reference to only heterosexual couples and have the effect of precluding
persons in queer relationships from adopting, violating the anti-discrimination
principle in Article 15(1). Thus, the phrases “male applicant” and “female applicant
(in case of applicant couples)” in Schedules II, III, VI and VII of the Adoption
Regulations are substituted with the phrases “prospective adoptive parent 1” and
“prospective adoptive parent 2 (in case of applicant couples).”
b. Challenge to the CARA Circular
319. In 2022, CARA issued an Office Memorandum stipulating that a single
prospective adoptive parent in a live-in relationship will be ineligible to adopt a
child. The Office Memorandum further provides that this decision is taken in line
with Regulation 5(3) of the Adoption Regulations which stipulates that a child can
only be placed with a stable family and that a single applicant in a live-in
relationship cannot be considered to be a part of a stable family. The relevant
portion of the Office Memorandum is extracted below:
“It has been noticed from Home study Reports (HSRs) that
some single PAPs registered with CARA for the adoption
process are in relationship with their live-in partner.
2. The cases of single PAPs engaged in live-in relationship
have been discussed in the Steering Committee of Central
Adoption Resource Authority (CARA) during its 31st Meeting
held on 18th April, 2022. It has been decided to go with the
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earlier decision of 14th Steering Committee Meeting held on
10th May, 2018 that the cases of single PAP in a live-in
relationship with a partner will not be considered eligible
to adopt a child and their registration from concerned
agencies/authorities will not be considered for approval.
3. The decision has been taken in line with Regulation 5(3) of
the Adoption regulations 2017. The authority would like the
children to be placed only with the stable family and single
applicant in a live-in relationship cannot be considered
as stable family.”
(emphasis supplied)
320. CARA in its 31st meeting held on 18 April 2022 in terms of the decision taken
in the Steering Committee Meeting held on 10 May 2018 resolved that an
application received by a prospective adoptive parent who is in a live-in relationship
may not be considered on the basis of Regulation 5(3) of the Adoption Regulations.
The resolution is extracted below:
“14. Reference is drawn to Steering Committee Meeting, held
on 10th May 2019 wherein the Steering Committee had not
approved adoption to prospective adoptive parents staying in
Live-in relationship. However, NOC section has received
three cases of children reserved from Special Need portal and
on examination of the HSR it has been observed that the
parents have been in live-in relationship.
15. In this regard the NOC committee had not approved inter-
country cases of the children on the basis of Reg. 5(3) which
states that no child shall be given in adoption to a couple
unless they have atleast two years of stable marital
relationship. Since the matter involves cases of special needs
children, the issue may be kindly be discussed in the Steering
Committee.
Decision: It was decided to go with the earlier decision of the
Steering committee and the same rule should be applicable
as that of the domestic PAPs. Any application received from
live in PAPs may not be considered on the basis of Reg. 5(3)
of the Adoption Regulations.”
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321. The CARA Circular prescribes a condition in addition to the conditions
prescribed in the Adoption Regulations. While the Adoption Regulations exclude
unmarried couples from jointly adopting a child, the CARA Circular restricts the
ability of a person who is in a live-in relationship to adopt in their individual
capacity. The CARA Circular stipulates that the decision is in pursuance of
Regulation 5(3) of the Adoption Regulations which requires couples to be in a
‘stable’ relationship.
322. Regulation 5(1) of the Adoption Regulations prescribes a general criteria (in
the form of a guiding principle) for prospective adoptive parents which is that they
must be physically, mentally, and emotionally fit, they must not be convicted of a
criminal act, and they must not have a life-threatening disease. These criteria are
equally applicable to couples and persons who wish to adopt in their individual
capacity. All the other subsequent provisions in Regulation 5 are specific to couples
(that is, the requirement of a stable relationship and the consent of both parties)
and individuals (that is, that a male cannot adopt a girl child). Hence, the additional
criterion prescribed by the CARA circular for a person to adopt in an individual
capacity must be traceable to the principles in Regulations 5(1) and 5(2)(c). The
condition imposed by CARA circular is neither traceable to the principles in
Regulations 5(1) and 5(2)(c) nor is it traceable to any of the provisions of the JJ
Act. The CARA Circular has exceeded the scope of the Adoption Guidelines and
the JJ Act.
323. According to the Adoption Regulations, unmarried couples cannot jointly
adopt a child. Though the additional criteria prescribed by the CARA Circular would
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PART E
also affect a heterosexual person’s eligibility to adopt a child, it would
disproportionately affect 279 non-heterosexual couples since the State has not
conferred legal recognition in the form of marriage to the union between non-
heterosexual persons. When the CARA Circular is read in light of this legal position,
a person of the queer community would be forced to choose between their wish to
be an adoptive parent and their desire to enter into a partnership with a person
they feel love and affinity with. This exclusion has the effect of reinforcing the
disadvantage already faced by the queer community. For these reasons and the
reasons recorded in Section D (xiii)(a)(III), the CARA Circular is violative of
Article 15 of the Constitution.
E. Response to the opinion of Justice Ravindra Bhat
324. In the opinion authored by him, my learned brother, Justice Ravindra Bhat
states that unenumerated rights are recognised by Courts in response to State
action “that threaten the freedom or right directly or indirectly.” With due respect,
such a narrow understanding of fundamental rights turns back the clock on the rich
jurisprudence that the Indian courts have developed on Part III of the Constitution.
This Court has held in numerous cases held that the rights of persons are infringed
not merely by overt actions but also by inaction on the part of the State. Some of
these precedents are referred to below.
279 See Lt. Col. Nitisha v. Union of India, 2021 SCC OnLine SC 261
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PART E
325. In NALSA (supra), this Court held that the State by rendering the
transgender community invisible and failing to recognize their gender identity
deprived them of social and cultural rights. This Court recognised the duty of the
State to enable the exercise of rights by the transgender community and issued a
slew of directions to enforce this duty. Justice AK Sikri in his opinion issued the
following declarations and directions:
“129. We, therefore, declare:
1. Hijras, Eunuchs, apart from binary gender, be treated as “third
gender” for the purpose of safeguarding their rights under Part
III of our Constitution and the laws made by the Parliament
and the State Legislature.
2. Transgender persons’ right to decide their selfidentified
gender is also upheld and the Centre and State Governments
are directed to grant legal recognition of their gender identity
such as male, female or as third gender.
3. We direct the Centre and the State Governments to take steps
to treat them as socially and educationally backward classes
of citizens and extend all kinds of reservation in cases of
admission in educational institutions and for public
appointments.
4. Centre and State Governments are directed to operate
separate HIV Sero-surveillance Centres since Hijras/
Transgenders face several sexual health issues.
5. Centre and State Governments should seriously address the
problems being faced by Hijras/Transgenders such as fear,
shame, gender dysphoria, social pressure, depression,
suicidal tendencies, social stigma, etc. and any insistence for
SRS for declaring one’s gender is immoral and illegal.
6. Centre and State Governments should take proper measures
to provide medical care to TGs in the hospitals and also
provide them separate public toilets and other facilities.
7. Centre and State Governments should also take steps for
framing various social welfare schemes for their betterment.
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PART E
8. Centre and State Governments should take steps to create
public awareness so that TGs will feel that they are also part
and parcel of the social life and be not treated as
untouchables.
9. Centre and the State Governments should also take
measures to regain their respect and place in the society
which once they enjoyed in our cultural and social life.”
326. In Union of India v. Association of Democratic Reforms280, proceedings
under Article 136 were initiated against the judgment of the High Court of Delhi
which recognised the rights of citizens to receive information regarding criminal
activities of a candidate to the legislative assembly. The High Court directed the
Election Commission to inter alia secure information on whether the candidate is
accused of any offence and the assets possessed by a candidate. A three-Judge
Bench of this Court dismissed the appeal and held that it is imperative that the
electorate possesses sufficient information to enable them to exercise their right to
vote. The observations are extracted below:
“34. From the afore quoted paragraph, it can be deduced that
the members of a democratic society should be sufficiently
informed so that they may influence intelligently the decisions
which may affect themselves and this would include their
decision of casting votes in favour of a particular candidate. If
there is a disclosure by a candidate as sought for then it would
strengthen the voters in taking appropriate decision of casting
their votes.
45. Finally, in our view this Court would have ample power to
direct the Commission to fill the void, in the absence of
suitable legislation covering the field and the voters are
required to be well informed and educated about contesting
candidates so that they can elect a proper candidate by their
own assessment. It is the duty of the executive to fill the
vacuum by executive orders because its field is coterminous
with that of the legislature, and where there is inaction by the
executive, for whatever reason, the judiciary must step in, in
exercise of its constitutional obligations to provide a solution
280 (2002) 5 SCC 294
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PART E
till such time the legislature acts to perform its role by enacting
proper legislation to cover the field. The adverse impact of
lack of probity in public life leading to a high degree of
corruption is manifold. Therefore, if the candidate is directed
to declare his/her spouse's and dependants' assets —
immovable, movable and valuable articles — it would have its
own effect.”
327. While the precedents on the subject are not multiplied in the text of the
judgment, some of the judgments on this point are footnoted. 281 In view of the
discussion above, the observation of Justice Bhat that an overt action of the State
is necessary for the court to direct the State to create enabling conditions has no
jurisprudential basis. Neither the provisions of the Constitution nor the earlier
decisions of this Court create such a distinction. In fact, as I have discussed in
detail, Article 32 of the Constitution states that the Supreme Court shall have the
power to issue directions for the enforcement of rights conferred by Part III without
making any distinction between action and inaction by the State.
328. I also disagree with the observations of Bhat J that in the absence of a legal
regime, the power of this Court to issue directions to enable the facilitation of rights
is limited. In Sheela Barse v. Union of India 282, the petitioner, a social activist
brought to the attention of this court that the State of West Bengal jailed persons
with mental disabilities who are not suspected, accused, charged of, or convicted
for, committing any offence but only for the reason that they are mentally ill. The
decision to jail them was made based on an instant assessment of their mental
health. This Court held that the admission of such mentally ill persons to jails was
281 In the context of the right to speedy trial, see SC Advocates-on-Record Association v. Union of India, (1993) 4
SCC 441 (paragraph 505-507) and State of Punjab v. Ajaib Singh, (1995) 2 SCC 486 (paragraph 6); in the context
of the right to environment, see MC Mehta v. Union of India, (2004) 6 SCC 588 (paragraphs 40 and 42); in the
context of the right to freedom from noise pollution, see Noise Pollution (I), in re (2005) 5 SCC 727; in the context
of the right to legal aid, see State of Maharashtra v. Manubhai Pragji Vashi, (1995) 5 SCC 730
282 (1993) 4 SCC 204
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PART E
illegal and unconstitutional. This Court also directed that hospitals shall be
immediately upgraded, psychiatric services shall be set up in all teaching and
district hospitals, including filling posts for psychiatrists, and integrating mental
health care with the primary health care system. In PUCL v. Union of India283, the
petitioner submitted that the right to livelihood implies that the State has a duty to
provide food to people. In a series of orders, this Court identified government
schemes which constituted legal entitlements of the right to food and outlined the
manner of implementing these schemes.
329. My learned brother relies on the example of Article 19(1)(d) to buttress his
point. He states that in the absence of a law which casts a duty on the State to
provide transportation through roads, a citizen cannot approach the court and seek
the construction of a road to enforce the right to move freely. The opinion of my
learned brother fails to have noted the judgment of a three-Judge Bench of this
Court in State of Himachal Pradesh v. Umed Ram Sharma 284. In this case, a
letter petition was written to the High Court claiming that the construction of a road
which would benefit the residents of the village and in particular, the members of
the Dalit community was stopped by the State. The High Court directed the
Superintending Engineer of the Public Works Department to complete the
construction of the road. This Court dismissed the appeal against the judgment of
the High Court observing that the Constitution places a duty on the State to provide
roads for residents of hilly areas because access to roads is encompassed in their
right to secure a quality life. This Court recognised that the right under Article 21 of
283 WP (Civil) No. 196/2001
284 (1986) 2 SCC 68
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PART E
the Constitution is violated if the State does not build roads for effective
communication and transportation. Thus, even in the absence of a law which
requires the State to build roads, such a duty was imposed on the State on an
interpretation of Part III of the Constitution. Moreover, in the precent case, the
petitioners are demanding equal access to something which does exist (i.e., the
entitlements which flow from the right to form an abiding cohabitational union). In
fact, my learned brother himself recognizes this when he holds that the actions of
the state have the effect of discriminating against queer couples. The example
under Article 19(1)(a) is unconvincing for similar reasons.
330. Bhat, J. holds that: (i) the legal dimension of marriage in USA is different
from the legal dimension of marriage in India; (ii) the legality of a marriage in USA
is solely dependent on a validly obtained license; (iii) in India, the legal status of a
marriage stems from personal law and customs; and (iv) the terms of marriage are
set, to a large extent, independently of the state. While there is no doubt that
marriage predates the state and the existence of what we now consider ‘law’, I am
unable to agree with the conclusion of my learned brother that the status of a
marriage in India stems only from personal law and customs and that the terms of
marriage are largely set independently of the state, for two reasons: First, the legal
status of a married couple stems from statute. Once the state began regulating
marriage, the validity (and consequently, the ‘status’) of marriage is traceable to
law. While law may provide that a marriage is valid if it was performed in
accordance with custom, it is beyond cavil that the only reason that a custom is
relevant (for the purposes of law) is because of law itself. Therefore, it is law
(through statutes) that accords significance to personal law and customs and it is
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statutes that may (and often do) deviate from personal law and customs. Second,
the number of legislations which govern marriage as well as the detailed framework
which they set out makes it immediately evident that the terms of marriage are not
set independently of the state, but by the state itself. From divorce to custody to
maintenance to domestic violence and offences, almost every aspect of marriage
is regulated by the state. I have discussed the manner in which marriage has
evolved (through state regulation) in detail in Section D(iii)(b) of my judgment.
Thus, marriage as an institution cannot anymore be viewed as solely traceable to
customs and traditions after the State’s interference to regulate the institution. The
State’s reformation of the institution has slowly but evidently changed the nature of
the institution itself. Under the Constitution, the state is empowered to reform social
institutions including marriage in line with constitutional values.
331. Contrary to what is stated in the judgment of Bhat, J., the directions in my
judgment do not require the state to create social or legal status, or a social
institution. The directions are with a view to recognizing the choice that a person
makes for themselves when they choose another to be their partner for life. The
directions seek to make that choice a meaningful one. Nowhere do they create an
institution of any kind. Rather, they give effect to the fundamental rights in Part III
of the Constitution. This is the mandate of this Court under Article 32 – “The
Supreme Court shall have power to issue directions or orders or writs … for the
enforcement of any of the rights conferred by this Part.” No response is forthcoming
to my detailed exposition of the scope of the powers of this Court under Article 32
in Section D(i) of my judgment. In fact, Bhat, J. himself recognizes that courts often
enable and oblige the state to take measures. My learned brother also arrives at
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the conclusion that the state is indirectly discriminating against the queer
community but fails to exercise the power vested in this Court by Article 32 to
alleviate this discrimination in any way. This Court is not through judicial diktat
creating a legal regime exclusively for persons of the queer community but merely
recognising the duty of the State to recognise the entitlements flowing from
exercising the right to choose a life partner.
332. Bhat, J. states that no one has contended that two queer persons have the
right of a sustained partnership which is traceable to Articles 19(1)(a), (c), (d) and
the right to conscience under Article 25. This is not true, as demonstrated by the
segment of this judgment on the submissions made by the petitioners.285
333. Bhat, J. has held that:
a. The classification in a legislation is to be discerned by gathering the
object sought to be achieved by the enactment. The object of the SMA
was to enable inter-faith heterosexual marriage. The classification is
therefore between same-faith heterosexual couples and inter-faith
heterosexual couples. It does not discriminate against queer persons;
and
b. The test for discrimination is not the object of the statute but its effect
and impact. The effect of the state regulating marriage only for
heterosexual couples is that it “adversely impacts” them, “results in their
285 Illustratively, see the submissions of (i) Dr Abhishek Manu Singhvi (at paragraph 21(d) of this judgment); (ii) Mr.
Raju Ramachandran (at paragraph 22(a) of this judgment); (iii) Mr KV Vishwanathan (at paragraph 23(f) of this
judgment); (iv) Mr. Anand Grover (at paragraph 25(e) of this judgment); (v) Dr. Menaka Guruswamy (at paragraph
27(d) of this judgment); (vi) Ms. Anitha Shenoy (at paragraph 31(a) of this judgment).
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exclusion,” “results in denial of entitlements / benefits,” and that “this
injustice and inequity results in discrimination.” The state must address
“this deprivation” and take “remedial action.”
My learned brother contradicts himself when he holds that the SMA is not
discriminatory by relying on its object, on the one hand, and that the state has
indirectly discriminated against the queer community because it is the effect and
not the object which is relevant, on the other. My learned brother discusses in
detail the deprivation, exclusion, and discrimination faced by the queer community.
In effect, he: (i) recognizes that they have a right not to be discriminated against;
and (ii) holds that the actions of the state have the effect of discriminating against
them. However, he does not take the step which logically follows from such a ruling
which is to pass directions to obviate such discrimination and ensure the realization
of the rights of the queer community. I cannot bring myself to agree with this
approach. The realization of a right is effectuated when there is a remedy available
to enforce it. The principle of ubi jus ibi remedium (that is, an infringement of a right
has a remedy) which has been applied in the context of civil law for centuries
cannot be ignored in the constitutional context. Absent the grant of remedies, the
formulation of doctrines is no more than judicial platitude.
334. Bhat, J highlights that the central question which arises for the consideration
of this Court is whether the absence of law or a regulatory framework, or the failure
of the State to enact law, amounts to discrimination that is protected under Article
15. He states that “there is no known jurisprudence or case law (yet) pointing to
the absence of law being considered as discrimination as understood under Article
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PART E
15.” Here, I would like to sound a note of caution (which, though obvious, bears
repetition) – the manner in an issue is framed impacts the analysis of the issue. In
fact, Bhat, J’s reasoning deviates from the jurisprudence that this Court has
developed on the interpretation of Article 15. Bhat, J’s reasoning assesses the
‘objective’ of a law instead of its ‘effect. This is best understood with the help of an
example. Suppose the state were to enact a law which enabled only citizens of a
particular caste to avail the services of a particular government hospital but which
did not expressly prohibit members of other castes from availing its services. This
law contains various conditions which must be satisfied before services of the
hospital can be availed (such as a list of diseases which it treats or how advanced
a particular disease is). This law can be understood as being an “enabling law” or
a law which “regulates” or it can be understood (in its true sense) as a law which
has the effect of excluding certain groups on the basis of prohibited markers of
identity. This remains true not only of a hospital but of any service or scheme or
institution that one can imagine. Hence, what is framed as the “absence of a law”
or an “enabling law” can have the same restrictive effect as a law which expressly
bars or prohibits certain actions or excludes certain groups.
335. I disagree with the observations of my learned brother that the State has a
positive obligation under Article 21 but such an obligation cannot be read into other
fundamental rights other than Article 21. I reiterate the observations made in
Section D(ix)(a).
336. Bhat, J. distinguishes the judgments in Vishaka (supra), Common Cause
(supra) and NALSA (supra) from the present case by holding that in each of these
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PART E
cases, directions were passed because the “inadequacies … were acute and
intolerable” and faced by “entire groups.” However, he does not explain why the
inadequacies faced by the queer community in this case are mild or tolerable.
There is neither a test nor standard known to law by which discrimination, or the
violation of a fundamental right, must reach a level of intolerability for this Court to
exercise its jurisdiction. Regardless of the severity of the violation, it is the duty of
this Court to protect the exercise of the right in question. Further, in this case too,
the rights of an “entire group” (being the queer community) are at issue.
337. The opinion of Bhat, J. highlights that the reading of the Adoption
Regulations to permit unmarried couples to adopt would have ‘disastrous
outcomes’ because the law, as it stands today, does not guarantee the protection
of the child of unmarried parents adopting jointly. A reading of the numerous laws
relating to the rights of children qua parents indicates that the law does not create
any distinction between children of married and unmarried couples so long as they
are validly adopted. Section 12 of the Hindu Adoptions and Maintenance Act 1956
states that an adopted child shall be deemed to be the child of their adopted
parents for all purposes from the date of adoption. Similarly, Section 63 of the JJ
Act also creates a deeming fiction. The provision states that a child in respect of
whom an adoption order is issued shall become the child of the adoptive parents
and the adoptive parents shall become the parents of the child as if the child had
been born to the adoptive parents, including for the purposes of intestacy.
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338. In view of the deeming fiction created by Section 12 of the Hindu Adoptions
and Maintenance Act 1956 and Section 63 of the JJ Act, an adopted child is a
legitimate child of the adopting couple. The manner of determination of legitimacy
prescribed by Section 112 of the Indian Evidence Act 1872 286 shall not apply in
view of the deeming fiction created by Section 12 of the Hindu Adoptions and
Maintenance Act 1956 and Section 63 of the JJ Act. Thus, all the benefits which
are available under the law to a legitimate child (who has been validly adopted) of
a married couple will equally be available to the legitimate child of an unmarried
couple. For example, Section 20 of the Hindu Adoptions and Maintenance Act 1956
which provides that a Hindu is to maintain their children does not make any
distinction between a legitimate child of a married and an unmarried couple.
Similarly, succession law in India does not differentiate between the child of a
married and an unmarried couple if the child has been adopted by following the
due process of law. Further, the breakdown of the relationship of an unmarried
couple will not lead to a change in applicable law because the child will continue to
be a legitimate child even after the breakdown of the relationship. It is therefore
unclear what the ‘disastrous outcomes’ referred to, are. My learned brother has
also failed to address whether Regulation 5(3) is discriminatory for distinguishing
between married and unmarried couples for the purpose of adoption and for the
disproportionate impact that it has on the members of the queer community while
simultaneously holding that “the State cannot, on any account, make regulations
that are facially or indirectly discriminatory on the ground of sexual orientation.”
286 The provision confers legitimacy on a child born during the continuance of a valid marriage or within two eighty
days since the dissolution of marriage.
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PART F
F. Directions to obviate discrimination
339. Counsel for the petitioners and some counsel for the respondents advanced
extensive submissions on the various forms of violence and discrimination that
society and the state machinery inflict upon the queer community, and especially
queer couples. This has been discussed in detail in the prefatory part of the
judgment. Counsel sought directions to obviate such violence and discrimination.
a. The Union Government, State Governments, and Governments of Union
Territories are directed to:
i. Ensure that the queer community is not discriminated against because
of their gender identity or sexual orientation;
ii. Ensure that there is no discrimination in access to goods and services
to the queer community, which are available to the public;
iii. Take steps to sensitise the public about queer identity, including that it
is natural and not a mental disorder;
iv. Establish hotline numbers that the queer community can contact when
they face harassment and violence in any form;
v. Establish and publicise the availability of ‘safe houses’ or Garima Grehs
in all districts to provide shelter to members of the queer community who
are facing violence or discrimination;
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PART F
vi. Ensure that “treatments” offered by doctors or other persons, which aim
to change gender identity or sexual orientation are ceased with
immediate effect;
vii. Ensure that inter-sex children are not forced to undergo operations with
regard only to their sex, especially at an age at which they are unable to
fully comprehend and consent to such operations;
viii. Recognize the self-identified gender of all persons including transgender
persons, hijras, and others with sociocultural identities in India, as male,
female, or third gender. No person shall be forced to undergo hormonal
therapy or sterilisation or any other medical procedure either as a
condition or prerequisite to grant legal recognition to their gender identity
or otherwise;
b. The appropriate Government under the Mental Healthcare Act must formulate
modules covering the mental health of queer persons in their programmes
under Section 29(1). Programmes to reduce suicides and attempted suicides
(envisaged by Section 29(2)) must include provisions which tackle queer
identity;
c. The following directions are issued to the police machinery:
i. 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;
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PART F
ii. They shall not force queer persons to return to their natal families if they
do not wish to return to them;
iii. When a police complaint is filed by queer persons alleging that their
family is restraining their freedom of movement, they shall on verifying
the genuineness of the complaint ensure that their freedom is not
curtailed;
iv. When a police complaint is filed apprehending violence from the family
for the reason that the complainant is queer or is in a queer relationship,
they shall on verifying the genuineness of the complaint ensure due
protection; and
v. Before registering an FIR against a queer couple or one of the parties in
a queer relationship (where the FIR is sought to be registered in relation
to their relationship), they shall conduct a preliminary investigation in
terms of Lalita Kumari v. Government of U.P 287, to ensure that the
complaint discloses a cognizable offence. The police must first
determine if the person is an adult. If the person is an adult and is in a
consensual relationship with another person of the same or different
gender or has left their natal home of their own volition, the police shall
close the complaint after recording a statement to that effect.
287 (2014) 2 SCC 1
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PART G
G. Conclusions and orders of enforcement
340. In view of the discussion above, the following are our conclusions:
a. This Court is vested with the authority to hear this case. Under Article
32, this Court has the power to issue directions, orders, or writs for the
enforcement of the rights in Part III;
b. Queerness is a natural phenomenon known to India since ancient times.
It is not urban or elite;
c. There is no universal conception of the institution of marriage, nor is it
static. Under Articles 245 and 246 of the Constitution read with Entry 5
of List III to the Seventh Schedule, it lies within the domain of Parliament
and the state legislatures to enact laws recognizing and regulating queer
marriage;
d. Marriage has attained significance as a legal institution largely because
of regulation by the state. By recognizing a relationship in the form of
marriage, the state grants material benefits exclusive to marriage;
e. The State has an interest in regulating the ‘intimate zone’ to democratize
personal relationships;
f. The issue of whether the Constitution recognizes the right to marry did
not arise before this Court in Justice KS Puttaswamy (9J) (supra),
Shafin Jahan (supra), and Shakti Vahini (supra);
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g. The Constitution does not expressly recognize a fundamental right to
marry. An institution cannot be elevated to the realm of a fundamental
right based on the content accorded to it by law. However, several facets
of the marital relationship are reflections of constitutional values
including the right to human dignity and the right to life and personal
liberty;
h. This Court cannot either strike down the constitutional validity of SMA or
read words into the SMA because of its institutional limitations. This
Court cannot read words into the provisions of the SMA and provisions
of other allied laws such as the ISA and the HSA because that would
amount to judicial legislation. The Court in the exercise of the power of
judicial review must steer clear of matters, particularly those impinging
on policy, which fall in the legislative domain;
i. The freedom of all persons including queer couples to enter into a union
is protected by Part III of the Constitution. The failure of the state to
recognise the bouquet of entitlements which flow from a union would
result in a disparate impact on queer couples who cannot marry under
the current legal regime. The state has an obligation to recognize such
unions and grant them benefit under law;
j. In Article 15(1), the word ‘sex’ must be read to include ‘sexual
orientation’ not only because of the causal relationship between
homophobia and sexism but also because the word ‘sex’ is used as a
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marker of identity which cannot be read independent of the social and
historical context;
k. The right to enter into a union cannot be restricted based on sexual
orientation. Such a restriction will be violative of Article 15. Thus, this
freedom is available to all persons regardless of gender identity or
sexual orientation;
l. The decisions in Navtej (supra) and Justice KS Puttaswamy (9J)
(supra) recognize the right of queer couples to exercise the choice to
enter into a union. This relationship is protected from external threat.
Discrimination on the basis of sexual orientation will violate Article 15;
m. Transgender persons in heterosexual relationships have the right to
marry under existing law including personal laws which regulate
marriage;
n. Intersex persons who identify as either male or female have the right to
marry under existing law including personal laws which regulate
marriage;
o. The state must enable the LGBTQ community to exercise its rights under
the Constitution. Queer persons have the right to freedom from coercion
from their natal families, agencies of the state including the police, and
other persons;
p. Unmarried couples (including queer couples) can jointly adopt a child.
Regulation 5(3) of the Adoption Regulations is ultra vires the JJ Act,
244
PART G
Articles 14, and 15. Regulation 5(3) is read down to exclude the word
“marital”. The reference to a ‘couple’ in Regulation 5 includes both
married and unmarried couples as well as queer couples. The principle
in Regulation 5(2)(a) that the consent of spouses in a marriage must be
obtained if they wish to adopt a child together is equally applicable to
unmarried couples who seek to jointly adopt a child. However, while
framing regulations, the state may impose conditions which will subserve
the best interest and welfare of the child in terms of the exposition in the
judgment;
q. The CARA Circular disproportionately impacts the queer community and
is violative of Article 15;
r. The Union Government, State Governments, and Governments of Union
Territories shall not discriminate against the freedom of queer persons
to enter into union with benefits under law; and
s. We record the assurance of the Solicitor General that the Union
Government will constitute a Committee chaired by the Cabinet
Secretary for the purpose of defining and elucidating the scope of the
entitlements of queer couples who are in unions. The Committee shall
include experts with domain knowledge and experience in dealing with
the social, psychological, and emotional needs of persons belonging to
the queer community as well as members of the queer community. The
Committee shall before finalizing its decisions conduct wide stakeholder
consultation amongst persons belonging to the queer community,
245
PART G
including persons belonging to marginalized groups and with the
governments of the States and Union Territories.
The Committee shall in terms of the exposition in this judgment consider the
following:
i. Enabling partners in a queer relationship (i) to be treated as a part of the
same family for the purposes of a ration card; and (ii) to have the facility
of a joint bank account with the option to name the partner as a nominee,
in case of death;
ii. In terms of the decision in Common Cause v. Union of India 288, as
modified by Common Cause v. Union of India 289, medical practitioners
have a duty to consult family or next of kin or next friend, in the event
patients who are terminally ill have not executed an Advance Directive.
Parties in a union may be considered ‘family’ for this purpose;
iii. Jail visitation rights and the right to access the body of the deceased
partner and arrange the last rites; and
288 (2018) 5 SCC 1
289 2023 SCC OnLine SC 99
246
PART G
iv. Legal consequences such as succession rights, maintenance, financial
benefits such as under the Income Tax Act 1961, rights flowing from
employment such as gratuity and family pension and insurance.
The report of the Committee chaired by the Cabinet Secretary shall be
implemented at the administrative level by the Union Government and the
governments of the States and Union Territories.
341. The petitions in these proceedings are disposed of in terms of this judgment.
342. Pending applications (if any) are disposed of.
…….……………………………………CJI
[Dr Dhananjaya Y Chandrachud]
New Delhi;
October 17, 2023
247
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO.1011 OF 2022
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. … Petitioners
Versus
UNION OF INDIA …Respondents
with:
W.P.(C) No.1020/2022
W.P.(C) No.1105/2022
W.P.(C) No.1141/2022
W.P.(C) No.1142/2022
W.P.(C) No. 1150/2022
W.P.(C) No. 93/2023
W.P.(C) No. 159/2023
W.P.(C) No.129/2023
W.P.(C) No.260/2023
T.C.(C) No.5/2023
T.C.(C) No.6/2023
W.P.(C) No.319/2023
T.C.(C) No.7/2023
T.C.(C) No.8/2023
T.C.(C) No.10/2023
T.C.(C) No.9/2023
T.C.(C) No.11/2023
T.C.(C) No.12/2023
T.C.(C) No.13/2023
W.P.(C) No. 478/2023
W.P.(C) No.1011/2022 Page 1 of 17
JUDGMENT
SANJAY KISHAN KAUL, J.
1. This case presents a new path and a new journey in providing legal
recognition to non-heterosexual relationships.
2. I have had the benefit of the exhaustive and erudite judgment of the
Hon’ble Chief Justice Dr. D.Y. Chandrachud; which enumerates the prevalence
of these relationships in history, the Constitutional recognition of the right to
form unions (in other words ‘civil unions’), and the necessity of laying down
guidelines to protect non-heterosexual unions. In a way, this is a step forward
from the decriminalisation of private consensual sexual activities by the
LGBTQ+ community in Navtej Singh Johar & Ors. vs. Union of India,
Through Secretary, Ministry of Law & Justice.1
3. The judgment penned down by the Hon’ble Chief Justice considers all
aspects of the challenge. However, the subject matter itself persuades me to pen
down a few words while broadly agreeing with his judgment.
Historical prevalence of non-heterosexual unions
4. In their submissions, the Respondents raised doubts about the social
acceptability of non-heterosexual relationships. Before we address the same, it
1
2018 (1) SCC 791.
W.P.(C) No.1011/2022 Page 2 of 17
is no longer res integra that the duty of a constitutional Court is to uphold the
rights enshrined in the Constitution and to not be swayed by majoritarian
tendencies or popular perceptions. This Court has always been guided by
constitutional morality and not by social morality.2
5. A pluralistic social fabric has been an integral part of Indian culture and
the cornerstone of our constitutional democracy. 3 Non-heterosexual unions are
well-known to ancient Indian civilisation as attested by various texts, practices,
and depictions of art. These markers of discourse reflect that such unions are an
inevitable presence across human experience. Hindu deities were multi-
dimensional and multi-faceted and could appear in different forms. One of the
earliest illustrations is from the Rig Veda itself. Agni, one of the most important
deities, has been repeatedly described as the “child of two births” (dvijanman),
“child of two mothers” (dvimatri), and occasionally, “child of three mothers”
(the three worlds).4
6. In Somdatta’s Kathasaritsagara, same-sex love is justified in the context
of rebirth. Somaprabha falls in love with Princess Kalingasena and claims that
she loved her in her previous birth as well.5 Hindu mythology is replete with
several such examples. We need not be detained in an effort to capture each of
2
Navtej (Supra).
3
Maqbool Fida Husain v. Rajkumar Pandey, 2008 Cri LJ 4107.
4
Ruth Vanita and Saleem Kidwai, Same-sex love in India: Readings from Literature & History (Palgrave, 2001),
p. 15.
5
Ruth Vanita and Saleem Kidwai (Supra), p. 68.
W.P.(C) No.1011/2022 Page 3 of 17
them. The significant aspect is that same-sex unions were recognised in
antiquity, not simply as unions that facilitate sexual activity, but as
relationships that foster love, emotional support, and mutual care.6
7. Even in the Sufi tradition, devotion is often constructed around the idea
of love as expressed through music and poetry. In several instances, the human
relationship with the divine was expressed by mystics through the metaphor of
same-sex love.7 Love across genders is also reflected in the Rekhti tradition of
Lucknow. This tradition is centred around the practice of male poets writing in
a female voice and is characterised by its homoeroticism. Significantly, the
depictions of same-sex relationships are charged with affects such as love,
friendship, and companionship.8
8. Marriage as an institution developed historically and served various
social functions. It was only later in its long history that it came to be legally
recognized and codified.9 However, these laws regulated only one type of
socio-historical union, i.e., the heterosexual union.
9. It would thus be misconceived to claim that non-heterosexual unions are
only a facet of the modern social milieu. The objective of penning down this
section is to provide perspective on the existence of non-heterosexual unions,
despite continued efforts towards their erasure by the heteronormative majority.
6
Devdutt Pattnaik, The Man who was a Woman & Other Queer Tales (Routledge, 2002).
7
Ruth Vanita and Saleem Kidwai (supra), p. 115.
8
Manjari Shrivastava, Lesbianism in Nineteenth Century Erotic Urdu Poetry “Rekhti”, Proceedings of the Indian
History Congress, 68, 965.
9
Stephanie Coontz, Marriage, a History: How Love Conquered Marriage (Penguin, 2005), p. 3-5.
W.P.(C) No.1011/2022 Page 4 of 17
10. Non-heterosexual unions are entitled to protection under our
Constitutional schema. In Maqbool Fida Husain, I had observed: “Our
Constitution by way of Article 19(1) which provides for freedom of thought and
expression underpins a free and harmonious society. It helps to cultivate the
virtue of tolerance. It is said that the freedom of speech is the matrix, the
indispensable condition of nearly every other form of freedom. It is the
wellspring of civilization and without it liberty of thought would shrivel.”10
The necessity of recognizing civil unions
11. The judgment of the Hon’ble Chief Justice notes that the right to form
unions is a feature of Articles 19 and 21 of the Constitution. Therefore, the
principle of equality enumerated under Articles 14 and 15 demands that this
right be available to all, regardless of sexual orientation and gender. Having
recognized this right, this Court has taken on board the statement of the
Learned Solicitor General to constitute a Committee to set out the scope of
benefits available to such unions. I agree with the Hon’ble Chief Justice.
12. The Petitioners’ submissions demand that the Special Marriage Act,
187211 be tested on the touchstone of Part III of the Constitution, i.e., whether
they are discriminatory on the basis of sex and thus violative of Articles 14 and
15 of the Constitution. It is now settled law that Article 14 contemplates a two-
pronged test: (i) whether the classification made by the SMA is based on
10
Maqbool Fida Husain (supra).
11
Hereinafter referred to as “the SMA”.
W.P.(C) No.1011/2022 Page 5 of 17
intelligible differentia; and (ii) whether the classification has a reasonable
nexus to the objective sought to be achieved by the State.12 The first prong, i.e.,
intelligible differentia implies that the differentia should be clear and not vague.
Section 4 of the SMA is clear in so far as it contemplates a marriage between a
male who has completed the age of twenty-one years and a female at the age
of eighteen years. In defining the degrees of prohibited relationships, Section
2(b) of the SMA exclusively applies to a relationship between a man and a
woman. Thus, by explicitly referring to marriage in heterosexual relationships,
the SMA by implication creates two distinct and intelligible classes – i.e.,
heterosexual partners who are eligible to marry and non-heterosexual partners
who are ineligible.
13. Under the second prong, the Court examines whether the classification is
in pursuit of a State objective. The SMA’s Statement of Objects and Reasons
assists us in determining the objective. It is reproduced hereunder:
“Statement of Objects and Reasons. —This Bill revises and seeks to
replace the Special Marriage Act of 1872 so as to provide a special form
of marriage which can be taken advantage of by any person in India and
by all Indian nationals in foreign countries irrespective of the faith which
either party to the marriage may profess. The parties may observe any
ceremonies for the solemnisation of their marriage, but certain
formalities are prescribed before the marriage can be registered by the
Marriage Officers. For the benefit of Indian citizens abroad, the Bill
provides for the appointment of Diplomatic and Consular Officers as
Marriage Officers for solemnising and registering marriages between
citizens, of India in a foreign country.
12
D.S. Nakara v. Union of India, 1983 (2) SCR 165.
W.P.(C) No.1011/2022 Page 6 of 17
2. Provision is also sought to be made for permitting persons who are
already married under other forms of marriage to register their
marriages under this Act and thereby avail themselves of these
provisions.
3. The bill is drafted generally on the lines of the existing Special
Marriage Act of 1872 and the notes on clauses attached hereto explain
some of the changes made in the Bill in greater detail.” (Emphasis
supplied).
14. From the above, we see that the SMA postulates a ‘special form of
marriage’ available to any person in India irrespective of faith. Therefore, the
SMA provides a secular framework for solemnization and registration of
marriage. Here, I respectfully disagree with my brother Justice Ravindra Bhat,
that the sole intention of the SMA was to enable marriage of heterosexual
couples exclusively. To my mind, the stated objective of the SMA was not to
regulate marriages on the basis of sexual orientation. This cannot be so as it
would amount to conflating the differentia with the object of the statute.
Although substantive provisions of the SMA confer benefits only on
heterosexual relationships, this does not automatically reflect the object of the
statute. For as we are all aware, we often act in ways that do not necessarily
correspond to our intent. Therefore, we cannot look at singular provisions to
determine substantive intent of the statute. Doing so would be missing the
wood for the trees.
W.P.(C) No.1011/2022 Page 7 of 17
15. If the intent of the SMA is to facilitate inter-faith marriages, then there
would be no rational nexus with the classification it makes, i.e., excluding non-
heterosexual relationships.
16. In any event, regulating only heterosexual marriages would not be a
legitimate State objective. It is settled law that the Court can also examine the
normative legitimacy and importance of the State objective,13 more so in a case
such as this where sex (and thereby sexual orientation) is an ex-facie protected
category under Article 15(1) of the Constitution. An objective to exclude non-
heterosexual relationships would be unconstitutional, especially after this Court
in Navtej has elaborately proscribed discrimination on the basis of sexual
orientation.14 Therefore, the SMA is violative of Article 14.
17. However, I recognize that there are multifarious interpretive difficulties
in reading down the SMA to include marriages between non-heterosexual
relationships. These have been enumerated in significant detail in the opinions
of both the Hon’ble Chief Justice and Hon’ble Justice Bhat. I also agree that the
entitlements devolving from marriage are spread out across a proverbial
‘spider’s web’ of legislations and regulations. As rightly pointed out by the
Learned Solicitor General, tinkering with the scope of marriage under the SMA
can have a cascading effect across these disparate laws.
13
Deepak Sibal v. Punjab University, (1989) 2 SCC 145.
14
(supra).
W.P.(C) No.1011/2022 Page 8 of 17
18. In fact, the presence of this web of statutes shows that discrimination
under the SMA is but one example of a larger, more deeper form of social
discrimination against non-heterosexual people that is pervasive and structural
in nature. Ordinarily, such an intensive form of discrimination should require
keener and more intensive judicial scrutiny. However, due to limited
institutional capacity, this Court does not possess an adequate form of remedy
to address such a violation. As pointed out in the judgment of Hon’ble the
Chief Justice, substantially reading into the statute is beyond the powers of
judicial review and would be under the legislative domain. It would also not be
prudent to suspend or strike down the SMA, given that it is a beneficial
legislation and is regularly and routinely used by heterosexual partners desirous
of getting married. For this reason, this particular methodology of recognizing
the right of non-heterosexual partners to enter into a civil union, as opposed to
striking down provisions of the SMA, ought to be considered as necessarily
exceptional in nature. It should not restrict the Courts while assessing such
deep-seated forms of discrimination in the future.
19. Non-heterosexual unions and heterosexual unions/marriages ought to be
considered as two sides of the same coin, both in terms of recognition and
consequential benefits. The only deficiency at present is the absence of a
suitable regulatory framework for such unions. This Court in Navtej noted that:
“history owes an apology to the members of this community and their families,
for the delay in providing redressal for the ignominy and ostracism that they
have suffered through the centuries.” I believe that this moment presents an
W.P.(C) No.1011/2022 Page 9 of 17
opportunity of reckoning with this historical injustice and casts a collective
duty upon all constitutional institutions to take affirmative steps to remedy the
discrimination.
20. Thus, the next step in due course, would be to create an edifice of
governance that would give meaningful realization to the right to enter into a
union, whether termed as marriage or a union.
Charting a course: Interpreting statutes using Constitutional principles
21. As noted above, the benefits pertaining to marriage are spread out across
several incidental legislations and regulations. These statutes presently do not
explicitly extend to civil unions. However, now that we have recognized the
right to enter into civil unions; such statutes must be read in a manner to give
effect to this right, together with the principle of equality and non-
discrimination under Articles 14 and 15. In other words, statutory interpretation
must be in consonance with constitutional principles that are enumerated by
this Court. Needless to say, this should not detract from the Committee’s task
of ironing out the nitty-gritties of the entitlements of civil unions.
22. This exercise is necessary to foster greater coherence within the legal
system as a whole, both inter se statutes and between statutes and the
Constitution. Reading statutes in this manner will facilitate ‘inter-
connectedness’ by allowing constitutional values to link statutes within the
larger legal system. Constitutional values emanate from a living document and
thus are constantly evolving. Applying constitutional values to interpret statutes
W.P.(C) No.1011/2022 Page 10 of 17
helps update statutes over time to reflect changes since the statute’s enactment.
Ordinarily, constitutional principles come in contact with statutes when the
validity of such statutes is being tested. However, constitutional values should
play a more consistent role, which can be through the everyday task of
statutory interpretation.15
23. This interpretive technique has gained currency across jurisdictions. In
the famous Lüth case, the Federal Constitutional Court of Germany recognized
that the constitutional right of freedom of expression as enumerated under the
German Basic Law also ‘radiates’ into the statutory law of defamation. The
Court noted that:
“But far from being a value-free system the Constitution erects an
objective system of values in its section on basic rights, and thus
expresses and reinforces the validity of the basic rights. This system of
values, centring on the freedom of the human being to develop in society,
must apply as a constitutional axiom throughout the whole legal system:
it must direct and inform legislation, administration, and judicial
decision.”16
24. We may note that the Constitution of South Africa has an explicit
provision which directs that the interpretation of statutory law shall be in ‘due
regard to the spirit, purport and objects’ of the chapter on fundamental rights. 17
15
William N. Eskridge, Public Values in Statutory Interpretation, 137(4) UPenn Law Rev. 1007, 1009.
16
BVerfGE 7, 198 (Lüth-decision).
17
Section 35(3) of the Constitution of the Republic of South Africa.
W.P.(C) No.1011/2022 Page 11 of 17
The Constitutional Court of South Africa in Du Plessis v. De Klerk succinctly
observed the objective and scope of this provision:
“The common law is not to be trapped within the limitations of its past. It
needs not to be interpreted in conditions of social and constitutional
ossification. It needs to be revisited and revitalized with the spirit of the
constitutional values defined in Chapter 3 of the Constitution and with
full regard to the purport and objects of that Chapter.”18
25. Although no such provision exists in the Indian Constitution, our Courts
are no stranger to interpreting statutory laws through fundamental rights.
In Central Inland Water Transport Corpn. v Brojo Nath Ganguly, the Supreme
Court was concerned with the interpretation of ‘public policy’ under Section 23
of the Indian Contract Act, 1872.19 In this context, this Court observed:
“It is thus clear that the principles governing public policy must be and
are capable, on proper occasion, of expansion or modification. Practices
which were considered perfectly normal at one time have today become
obnoxious and oppressive to public conscience. If there is no head of
public policy which covers a case, then the court must in consonance
with public conscience and in keeping with public good and public
interest declare such practice to be opposed to public policy. Above all,
in deciding any case which may not be covered by authority our courts
have before them the beacon light of the Preamble to the Constitution.
Lacking precedent, the court can always be guided by that light and the
principles underlying the Fundamental Rights and the Directive
Principles enshrined in our Constitution.”
18
1996 (3) SA 850.
19
(1986) 3 SCC 156.
W.P.(C) No.1011/2022 Page 12 of 17
26. This technique of reading in Constitutional values should be used
harmoniously with other canons of statutory interpretation. In this context,
legislations that confer benefits on the basis of marriage should be construed to
include civil unions as well, where applicable.
The need for an anti-discrimination law
27. I am wholeheartedly in agreement with the opinion of the Hon’ble Chief
Justice that there is a need for a separate anti-discrimination law which inter
alia prohibits discrimination on the basis of sexual orientation. Presently, there
are several laws that have an anti-discrimination aspect to them. However, they
are fragmented and may fail to capture the multitudinous forms of
discrimination. Another compelling reason for a law that places a horizontal
duty of anti-discrimination is provided by the spirit of Article 15, which
prohibits discrimination by both the State and private actors. Presently,
although the Court assumes its role as the ‘sentinel on the qui vive’, the only
method to enforce this Constitutional right under Article 15 would be through
its writ jurisdiction. There are significant challenges for marginalized
communities to access this remedy. Therefore, the proliferation of remedies
through an anti-discrimination statute can be a fitting solution. Such legislation
would also be in furtherance of the positive duty of the State to secure social
order and to promote justice and social welfare under Article 38 of the
Constitution.
W.P.(C) No.1011/2022 Page 13 of 17
28. My suggestions for an anti-discrimination law are as follows. First, such
a law should recognize discrimination in an intersectional manner. That is to
say, in assessing any instance of discrimination, the Court cannot confine itself
to a singular form of discrimination. Instead, discrimination must be looked at
as a confluence of factors – as identities and individual instances of oppression
that ‘intersect’ and create a distinct form of disadvantage.20 Discrimination
laws can only be effective if they address the types of inequality that have
developed in the given society. This principle has already been recognized by
this Court in Navtej.21 Second, the duties under an anti-discrimination law can
be proportionately distributed between different actors depending on factors
such as the nature of functions discharged, their control over access to basic
resources, and the impact on their negative liberty.22 Third, an anti-
discrimination statute must also enumerate methods to redress existing
discrimination and bridge the advantage gap. This could be through policies
that distribute benefits to disadvantaged groups.23
Equal rights to equal love
29. The principle of equality mandates that non-heterosexual unions are not
excluded from the mainstream socio-political framework. However, the next
step would be to examine the framework itself, which cannot be said to be
20
Shreya Atrey, Intersectional discrimination (Oxford University Press, 2019), p. 41.
21
(supra).
22
Tarunabh Khaitan, A Theory of Discrimination Law (Oxford University Press, 2015), p. 212-213.
23
Khaitan (supra), p. 39.
W.P.(C) No.1011/2022 Page 14 of 17
neutral. On the contrary, it is inherently value-laden. One particularly
pernicious value is patriarchy, which manifests in various oppressive ways.
Gendered stereotypes and sex-based violence are lived realities of many. This
is something both society and law recognize.
30. I believe that the legal recognition of non-heterosexual unions can
challenge culturally ordained gender roles even in heterosexual relationships.
For a long period of time, marriage has been viewed in gendered terms. That is
to say, one’s status as husband or wife determines their duties and obligations
towards each other, their family, and society. Marriage enforces and reinforces
the linkage of gender with power by husband/wife categories, which are
synonymous with social power imbalances between men and women. 24 This is
notwithstanding the fact that there has been progressive awareness of these
issues. Non-heterosexual unions can make an important contribution towards
dismantling this imbalance while emphasizing alternative norms. As Eskridge
puts it: “In a man-man marriage where tasks are divided up along traditional
lines, a man will be doing the accustomed female role of keeping house. It is
this symbolism that represents the deeper challenge to traditional gender roles.
The symbolism can be expressed in the argot of normalization. Once female-
female and male-male couples can marry, the wife-housekeeper/husband-
breadwinner model for the family would immediately become less normal, and
perhaps even abnormal over time. The wife as someone who derives
24
Nan. D. Hunter, ‘Marriage, Law and Gender: A Feminist Inquiry’ in Sex Wars: Sexual Dissent and Political
Culture (Lisa Duggan and Nan. D. Hunter eds, Routledge, 2006) p. 109 – 110.
W.P.(C) No.1011/2022 Page 15 of 17
independent satisfaction from her job outside the home would immediately
become a little bit more normal.”25
31. In a non-heterosexual union, duties and obligations are not primarily
dictated by culturally ordained gender norms. In other words, both partners are
not limited by extant gender norms to shape their relationship, including the
division of labour. For instance, studies have found that partners in non-
heterosexual relationships share unpaid labour more equally than those in
heterosexual relationships.26 This is not to suggest that other imbalances of
power do not exist within non-heterosexual unions. Nevertheless, non-
heterosexual unions are not limited by the legally and socially sanctioned
gendered power dynamic that can be present in heterosexual unions.27
32. Legal recognition aids social acceptance, which in turn increases queer
participation in public spaces. Through the medium of legal recognition, queer
persons will have a greater opportunity to be ‘seen’ and ‘heard’ in ways not
previously possible. Queer expression will help facilitate an expansive social
dialogue, cutting across communities and generations. This dialogue will help
us reimagine all our relationships in a manner that emphasizes values such as
mutual respect, companionship, and empathy.
25
William Eskridge, Equality Practice: Civil Unions and the Future of Gay Rights, (Routledge, 2002) p. 322.
26
Abbie E. Goldberg et al, The Division of Labor in Lesbian, Gay, and Heterosexual New Adoptive Parents,
74(4) Journal of Marriage and Family, p. 812; Charlotte J. Patterson et al, Division of Labor Among Lesbian and
Heterosexual Parenting Couples: Correlates of Specialized Versus Shared Patterns, 11 Journal of Adult
Development, p. 179.
27
Rosemary Auchmuty, When Equality is not Equity: Homosexual Inclusion in Undue Influence Law, 11
Feminist Legal Studies, 163, 183.
W.P.(C) No.1011/2022 Page 16 of 17
Conclusion
33. Is this the end where we have arrived? The answer must be an emphatic
‘no’. Legal recognition of non-heterosexual unions represents a step forward
towards marriage equality. At the same time, marriage is not an end in itself.
Our Constitution contemplates a holistic understanding of equality, which
applies to all spheres of life. The practice of equality necessitates acceptance
and protection of individual choices. The capacity of non-heterosexual couples
for love, commitment and responsibility is no less worthy of regard than
heterosexual couples. Let us preserve this autonomy, so long as it does not
infringe on the rights of others. After all, “it’s my life.”28
...……………………………J.
[Sanjay Kishan Kaul]
New Delhi.
October 17, 2023.
28
‘Its my life’, a song by Bon Jovi.
“It's my life
It's now or never
But I ain't gonna live forever
I just want to live while I'm alive”.
W.P.(C) No.1011/2022 Page 17 of 17
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO(S). 1011 OF 2022
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. …APPELLANT(S)
VERSUS
UNION OF INDIA …RESPONDENT(S)
WITH
WRIT PETITION (CIVIL) NO(S). 1020 OF 2022
WRIT PETITION (CIVIL) NO(S). 1105 OF 2022
WRIT PETITION (CIVIL) NO(S). 1141 OF 2022
WRIT PETITION (CIVIL) NO(S). 1142 OF 2022
WRIT PETITION (CIVIL) NO(S). 1150 OF 2022
WRIT PETITION (CIVIL) NO(S). 93 OF 2023
WRIT PETITION (CIVIL) NO(S). 159 OF 2023
WRIT PETITION (CIVIL) NO(S). 129 OF 2023
WRIT PETITION (CIVIL) NO(S). 260 OF 2023
TRANSFERRED CASE (CIVIL) NO(S). 05 OF 2023
TRANSFERRED CASE (CIVIL) NO(S). 06 OF 2023
2
WRIT PETITION (CIVIL) NO(S). 319 OF 2023
TRANSFERRED CASE (CIVIL) NO(S). 07 OF 2023
TRANSFERRED CASE (CIVIL) NO(S). 08 OF 2023
TRANSFERRED CASE (CIVIL) NO(S). 10 OF 2023
TRANSFERRED CASE (CIVIL) NO(S). 09 OF 2023
TRANSFERRED CASE (CIVIL) NO(S). 11 OF 2023
TRANSFERRED CASE (CIVIL) NO(S). 12 OF 2023
TRANSFERRED CASE (CIVIL) NO(S). 13 OF 2023
WRIT PETITION (CIVIL) NO(S). 478 OF 2023
JUDGMENT
S. RAVINDRA BHAT, J.
Table of Contents I. Nature of marriage as a social institution ...................................................................5 II. State interest in regulating social practices, through legislation ..................................9 III. Tracing the rights enjoyed by queer persons .............................................................17 A. The trinity - autonomous choice, dignity and non-discrimination...................................... 17 i. Importance of personal choice under the Constitution .......................................................................17 ii. Dignity as a dimension of equality and all our liberties .......................................................................19 iii. Equality, non-discrimination and non-exclusion ..................................................................................21 B. Rights flowing from previous decisions of this court relating to the queer community....... 24 C. Is there a fundamental right to marry? ............................................................................ 26 D. Right to ‘union’, or abiding relationship ........................................................................... 29 IV. Positive obligations in furtherance of fundamental rights .........................................31 V. Inapplicability of the Special Marriage Act ...............................................................40 A. Challenge to the SMA on the ground of impermissible classification ................................. 40 3 B. Interpretation of provisions of SMA ................................................................................. 48 VI. Discriminatory impact on queer couples ...................................................................57 VII. Transgender persons in heterosexual persons can marry under existing law ..............62 VIII. Issue of joint adoption by queer couples ...................................................................63 A. Not a case of delegated legislation being ultra vires the parent Act................................... 64 B. Not a case for reading down or other interpretive construction ........................................ 67 C. Discriminatory impact of adoption regulations on queer persons ..................................... 68 IX. Moulding relief ........................................................................................................71 X. Conclusion and directions .........................................................................................76 XI. Postscript .................................................................................................................80
1. At the centre of the dispute, lies the definition and the content of two willing individuals’ right to marry. On the one hand the petitioners assert that marriage is an evolving social institution, capable of embracing the union of two willing non-heterosexual, queer or LGBTQ+ (used interchangeably) individuals and necessitating state recognition; on the other, the respondents assert that the institution of marriage rests on certain constant and unchanging premises, the most prominent of which is that it is a heterosexual union. The task of this Court lies in determining how the Constitution speaks on the issue.
2. Having had the benefit of reading the draft and revised opinions circulated by the learned Chief Justice, Dr. Chandrachud, we find it necessary to pen our reasoning and conclusions in this separate judgment. The learned Chief Justice has recorded in detail the submissions made by counsel, and claims made; they consequently do not require reiteration. Similarly, the sections addressing the Union Government’s preliminary objections – i.e., the discussion on the court’s authority to hear the case [Section D(i)], and that queerness is a natural phenomenon that is neither urban or elite [Section D(ii)], are parts we have no hesitation in agreeing with. However, we do not agree with the conclusions 4 arrived at by the learned Chief Justice and the directions issued. 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. We have briefly highlighted our main points of agreement, and reasoned in more detail those aspects with which, respectfully, we cannot persuade ourselves to concur. We had the benefit of perusing the concurring opinion of Narasimha, J. We endorse those observations and conclusions fully; the reasoning and conclusions shall be read as supplementing that of the present judgment.
3. The common ground on which the batch of petitions claim relief is that LGBTQ+ persons are entitled to solemnize and register their marriage – in other words, they claim a right to legal recognition of their unions within the marriage fold. The petitioners rely on fundamental rights to equality and non- discrimination, of dignity and autonomy and of expression and association, and specifically, most petitioners focus on Section 4(c) of the SMA as well as the first and second schedules thereof, to state that particular references to “husband” or “wife” in its provisions are to be read “down”, and a neutral expression needs to substituted, instead. A few petitioners also claims that Section 4(c) and 17 of the Foreign Marriage Act, 1969 (hereafter “FMA”) need to be similarly read down. Some of the prayers also relate to the right of such couples to adopt under existing laws in India. Some of the prayers specifically challenged Chapter II of the SMA– relating to notice and objections procedure prescribed. However, during the course of hearing, the court indicated that this was not a question of law that necessitated a 5 judge-bench ruling, and hence this issue was to be left for consideration by a numerically smaller bench.
5I. Nature of marriage as a social institution
4. Marriage, as a social institution predates all rights, forms of political thought and laws. The institution of family has no known origin in the sense that, there has been no stage of human existence, in which family was absent leading to another time in which it emerged. Marriage, however, has been regarded - for the longest time, as a relationship of man to woman which is recognized by custom, and thereafter law; it involves certain rights and duties in the case of both persons entering the union. It is considered to be one of the most important relationships, as it is not solely the individuals’ happiness and well-being but that of others too, that is affected by their conduct in it. It has long been regarded as the reason for society’s continuance on the one hand, and its building block on the other. What is marriage and the conceptualisation of its role in society, has undergone change over the time; it has engaged the attention of philosophers, from Plato to Hegel, Kant and John Stuart Mill and of religious leaders, like St. Augustine.
5. Different traditions view marriage as sacraments, and indissoluble unions (Hindus and Catholic Christians); Islam regards marriage as both contractual and sacred; Parsis regard it as both a sacrament and contractual. Most – if not all, place importance on procreation, creation of family, co-habitation, shared values as the important markers; at the same time, these traditions also recognize - in varying degrees, importance of companionship, spiritual union, friendship and togetherness of the spouses, in every way.
6. The respondents are right, in one sense in underlining that all conceptions of what constitutes marriage, all traditions and societies, have by and large, historically understood marriage as between heterosexual couples. The contexts of culture, social understanding of what constitutes marriage, in every social order are undoubtedly very important. At the same time, for the purpose of determining the claims in these petitions, it is also necessary to mark the progression of what 6 were deemed constitutive and essential constituents, and essential boundaries within which marriages were accepted.
7. Marriages have not always been dictated by voluntary choice. In medieval European societies, when a girl was physically able to consummate marriage, she was eligible for matrimony. Among the nobility and landed gentry, the principal consideration for marriage was exchange of property- in the form of dowry. Thus, it was not uncommon that among the “upper classes” marriages were loveless and unhappy. The sole reason for marriage was touted to be procreation, which the church dictated; thus, consummation of marriage and physical sexual relations were considered the most important features of every marriage, since this meant the establishment of family. Among Hindus, barriers of other kinds, such as ban on sagotra and sapinda marriages, and impermissibility of non-endogamous marriages, was widely prevalent, for the longest time. Although amongst Muslims, marriage is both sacramental and contractual, and requires exercise of free will, nevertheless, it is premised on the agreement of mehar, or the amount the groom would offer, for the bride. Muslim are permitted to marry others of the same faith, or from the “People of the Book” (known as Kitabiyas), such as Jews, Sabians and Christians. No marriage with polytheists is permitted. Similarly, widow re-marriage amongst Hindus was prohibited. Likewise, injunctions against inter-caste marriages were widely prevalent. Child marriages were widely prevalent too. Inter-religious marriages were impossible. In the USA, various laws had, in the past, prohibited interracial marriages. Arranged marriages were very common throughout the world until the 18th century.
8. It is, therefore, evident that for long periods, in many societies, the choice of a matrimonial partner was not free; it was bounded by social constraints. Much of the time, marriage was seen as an institution meant for procreation, and sexual union of the spouses. In most societies marriage had cast “roles” for the spouses; they were fairly inflexible, with men controlling most decisions, and women placed in subordinate positions, with little or no voice, and, for the longest time, 7 no legal authority, autonomy or agency. For millennia, custom, tradition, and law subordinated wives to husbands. Notions of equality of partners or their roles, were uncommon, if not totally unheard of. All these underwent radical change.
9. The greater part of history shows that choice of a spouse, based on love or choice played almost no role at all. Enlightenment, and Western thinkers of the eighteenth century established that pursuit of happiness was important to life. They advocated marrying for love, instead of status, or wealth or other considerations. The Industrial Revolution gave impetus to this thought. Marriages were solemnized and celebrated with increasing frequency, in Western cultures, based on choice, voluntary consent, and without parental approval. This movement increased tremendously - as women's-rights movement expanded and gained impetus in the nineteenth and twentieth centuries, wives started being regarded as their husbands' equals, not their property. Couples were also enabled to choose whether to have, and if so, how many children to have. If they were unhappy with each other, they could divorce - a choice exercised by a large number of couples. Marriage became primarily a personal contract between two equals seeking love, stability, and happiness. Therefore, although social mores prevailed in relation to marriage, traditions and legal regimes were not static; the changes that society underwent or the forces that brought change, also carried winds that breathed new content, new contexts and new values, into the institution of marriage.
10. Law’s progress stresses upon individual’s rights for equality. The form of marriage, or the legally prescribed procedures assume a secondary role - they are matters of belief and practice. They cannot be regarded as the essential content of marriage. Tying thali is necessary in South India among many Hindu communities; and in some parts the exchange of rings, garlands and some rituals is necessary in North India. Many Hindu marriage customs and traditions insist on the saptapadi; amongst Muslims, the nikah ceremony, witnessed by invitees, and other customary rituals and practices, is generally followed; Christian 8 customs emphasize on solemnization by the couples taking marriage vows. The rich diversity of this country and its pluralism is reflected in customary practices surrounding marriage solemnization, all – if not most of which involve the couple, the members of their family, and the larger community. Ritualistic celebration of marriage is considered by some as essential, while many in other sections may deem that the factum of marriage sufficient. For relationships that did not have customary practice dating back in history, the State enacted law – much like the petitioners, seek.
11. Therefore, legislations governing inter-caste and inter faith marriages, and adoption, are two important social relations relating to the family, through which secularism finds its base for an egalitarian social order under the Constitution. The enactment of laws to facilitate this aspect is testimony of the right of individuals to personal choice and autonomy. For instance, enactment of the Hindu Marriage (Removal of Disabilities) Act, 1946 enabled persons from the same gotra or pravara to marry. Likewise, the bar to Hindu widows’ remarriage, was removed by enacting the Hindu Widows Remarriage Act, 1856. Inter-caste and inter-faith marriages became a possibility under the SMA after 1954.
12. The ‘legal’ dimension of marriage, in the US – the jurisprudence of which the petitioners relied on, is markedly different from the nature of marriage in India, and its evolution. This contextual difference, is of great relevance, when considering a constitutional question of this kind. Marriage in countries like the US, was earlier a sacramental institution that flowed from the Church and its divine authority. However, in modern times, it flows from the State; which created a ‘license regime’ for marriage. The result is that marriages may be performed and celebrated with religious traditions or rituals, that have great meaning personally for the individuals – but the legality of the marriage, is solely dependent on a validly obtained license. This regime has since been extended to queer couples as well in the US. The law relating to marriage in India, however, has had a different trajectory. A deeply religious affair, it gained its legitimacy and 9 legal status from personal law and customs, that govern this aspect of life – for members belonging to all faiths. The matrimonial laws that have been enacted– were a result of the codification project (in the 19th and 20th century), which expressly recognise these social practices, while continuing to offer space to unwritten customary practices as well (barring aspects like marriageable age, etc. which are regulated by law). As mentioned, the SMA is the only avenue for a form of secular/non-religious ‘civil marriage’ – which too still ties into personal law for succession, and other aspects. The Indian context, is elaborated in the following Part II.
II. State interest in regulating social practices, through legislation
13. Before undertaking a study on whether there is a fundamental right to marry, and an obligation on the State to create such an avenue, it is necessary to traverse the brief history of state intervention in social practices including in relation to marriage. These laws were enacted in relation to different subject areas. However, a pattern certainly emerges, on the limited scope of interference.
14. The social practices resulting in stigma and exclusion of large sections of society, impelled the Constitution framers to frame specific provisions like Article 15(1) and (2), Articles 17, 23 and 24, which was left to the Parliament to flesh out through specific legislation. This resulted in statutes such as the Protection of Civil Rights Act, 1955, Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Bonded Labour System (Abolition) Act, 1976, Immoral Traffic (Prevention) Act, 1956, the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013, and their respective amendments. The laws removing barriers which prevented large sections of society from entering into temples and places of public worship, is another example.
15. In a somewhat similar vein, legislative activity, as aimed at bringing about gender parity through prohibiting prevailing practices that further inequality and sometimes even criminalizing certain customs, resulted in legislations such as the 10 Equal Remuneration Act, 1976 (which guaranteed equal pay for equal work regardless of the sex of the worker), the Dowry Prohibition Act, 1961 as amended subsequently, introduction of provisions in criminal law which gave teeth to such provisions [Sections 498A and 304B of the Indian Penal Code, 1860 (“IPC”), and Section 113A and 113B of the Evidence Act, 1872 which enabled courts to raise presumptions in the trial of such offences].
16. Other practices aimed at realization of social goals and furthering the mandate of Article 15(3) in respect of children such as the right to free universal education under Article 21A of the Constitution, and the Right to Free Education Act, 2009; The Child Labour (Prohibition and Regulation) Act, 1986; Protection of Children from Sexual Offences Act, 2012, the Juvenile Justice (Care and Protection) Act 2016 (hereafter, “JJ Act”), etc. In all these, the Parliament or the concerned legislatures donned the role of reformers, and furthered the express provisions of the Constitution, enjoining State action, in furtherance of Articles 15(2), 15(3), 17, 23 and 24.
17. Marriage has historically been a union solemnized as per customs, or personal law tracing its origin to religious texts. Legislative activity, in the personal law field, so far has been largely, though not wholly, to codify prevailing customs and traditions, and regulating them, only where needed. The instances that stand out, are the enactment of the Indian Succession Act, 1925, Hindu Women’s Right to Property Act, 1937, Hindu Marriage Act, 1955, the Hindu Adoptions and Maintenance Act, 1956, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956, the Indian Divorce Act, 1869 (as amended in 2001), the Muslim Personal Law (Shariat) Application Act, 1937; and the Anand Marriage Act, 1909 (as amended). These laws mostly codified traditions and customs, which existed, and to an extent, regulated marriages and succession laws. These laws also sought to introduce reforms: for the first time, monogamy was enacted as a norm applicable to all Hindus; likewise, the option of divorce was enacted, together with grounds on which or other remedies (like 11 judicial separation) could be sought. Further, the minimum age of marriage was also enacted, through provisions in various personal laws, and enforced through the Prohibition of Child Marriage Act, 2006 (which repealed the pre-existing Child Marriage Restraint Act, 1929) – this law applies to all sections of societies.
18. Existing conditions of women, especially in respect of issues such as maintenance, were considered inadequate even before the Constitution was brought into force. The earliest reform introduced was through the Bengal Sati Regulation, 18291 (by the colonial rulers). This was later followed by the Hindu Widow Remarriage Act, 1856 which enabled re-marriage of Hindu widows. These enactments pre-date the Constitution, and can be seen as reforms, meant to outlaw abhorrent practices viewed as evil, and needing prohibition, to protect women’s lives; in the case of widow remarriage, it was to enable child and young widows an opportunity to lead lives. Given the diversity of Hindu traditions and the differing approaches in various schools of law, which prevailed in different parts of the country, it was considered necessary to enact the Hindu Women’s Right to Property Act, 19372 (later with the enactment of the Hindu Succession Act, 1956, some rights were expanded through its provisions3). For a long time, daughters were treated unequally in regard to succession to the estate of their deceased father; this changed with the enactment of the Hindu Succession Amendment Act, 2005, and the substitution of Section 6, daughters (who were hitherto excluded from succession to any coparcenary properties) became entitled 1 Regulation XVII, A. D. 1829 of the Bengal Code 2 With the introduction of the Hindu Women's Right to Property Act, 1937, the widow of the deceased husband now had a right to her husband's property after his death. Unlike previously, where the property was divided among the surviving coparceners by the doctrine of survivorship, now it was the widow who had the sole right to such property. However, she only had limited rights (popularly called "limited estate") over such property, which remained with her till her death.
3After the coming of the Hindu Succession Act, 1956, any property held by a Hindu female, whether before or after the commencement of that Act and which does not fall under the exception of 14(2), is held by her in an unrestricted and absolute manner. The word "possessed" as incorporated in section 14 was further held by various judgements of this court to include any kind of remote possession, be it constructive, physical, or even a right to possess. The result of the incorporation of this section led to a situation whereby all the limited rights given to a female Hindu under the 1937 Act became absolute by virtue of section 14(1) of the Hindu Succession Act.
12to claim the share that a son was entitled to, in the case of death of a coparcener in relation to ancestral property.
19. The right to maintenance (pendente lite, as well as alimony) was given statutory force under the Hindu Marriage Act 1955 as well as the Hindu Maintenance and Guardianship Act 1956, for Hindus. All married women and children of their marriage, regardless of their religious or social backgrounds, were enabled to claim maintenance, by virtue of Section 488 of the Criminal Procedure Code, 1898. This provision was re-enacted, and progressively amended through section 125 of the Code of Criminal Procedure, 1973. This court, in its five-judge decision in Mohd. Ahmad Khan v. Shah Bano Begum (hereafter, “Shah Bano”)4 upheld the right of Muslim women, including divorced Muslim women to claim maintenance. However, soon after that decision, Parliament enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986, which diluted the ruling in Shah Bano (supra) and restricted the right of Muslim divorcées to alimony from their former husbands for only 90 days after the divorce (the period of iddat in Islamic law). The restriction imposed was however interpreted narrowly, and this court through a Constitution Bench, in Danial Latifi v. Union of India5 held that “nowhere has Parliament provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time”.
20. The Age of Consent Act in 1891, raised the age of marriage from 10 to 12 years. The Child Marriage Restraint Act of 1929 addressed this by prescribing the minimum age of marriage for females to 14 years and for boys to 18 years. The Child Marriage Restraint Act of 1929 (also known as the Sarda Act), was enacted as a result of prolonged pressure from social reform organisations and concerned people who fought against the negative repercussions of child marriage. The age 4 1985 (3) SCR 844 5 2001 Suppl. (3) SCR 419 13 limitations were later raised to 18 and 21 years old, under the Prohibition of Child Marriage Act, 2006. The practise of marrying off children young, which prevailed before these enactments, was thus, interdicted by legislation.
21. Similarly, even while exercising personal choice in marriage, these choices are regulated by law – prohibition of marriage of persons related by blood (consanguineous marriages)6. Other restrictions such as the requirement to be of “sound mind” to give valid consent or not to be “unfit for marriage and the procreation of children”.7 If a spouse is “incurably of unsound mind” or on the ground of unsoundness, the other spouse can secure divorce8. Bigamy among Hindus was abolished by enactment of the HMA, in 1955. Reform has been the underlying theme, impelling the state to intervene. The legislative trajectory, and indeed some of the debates that preceded enactment of measures like monogamy and divorce, showed a division of opinion. The first President, Rajendra Prasad, expressed strong sentiments against adopting such “foreign” concepts which were opposed to Hindu society. There were other voices, most prominently, women in public life, who supported the need to empower women.
22. It can thus, be seen that two kinds of legislations have regulated marriage:
the first, like SMA, HMA, the Hindu Disabilities Removal Act, and the Hindu Widows Remarriage Act, removed barriers, and enabled exercise of meaningful choice, specifically to women. The second kind of legislation are those which enacted restrictive regulations, essentially to further an orderly society and/or protect women: prohibit bigamy; define minimum age for marriage; child 6 Defined as “prohibited degrees” under Section 3 (g) of the Hindu Marriage Act, 1955 - which is not confined to a bar against marriages related by blood, but also through non-biological ties, such as widow of brother, son’s widow; mother in law, etc; Section 3 (1) (a) of the Parsi Marriage and Divorce Act, 1936; Section 19, Indian Divorce Act, 1869; Section 88, Indian Christian Marriages Act, 1872. Among Muslims, the concept of consanguinity is known as qurabat, i.e. blood relationships such as marrying one’s relatives like mother, grandmother, sister, aunt, niece, etc. Other grounds (affinity or mushaarat) are also prohibited relationships, i.e. marriage with mother in law, daughter in law, step grandmother; step granddaughter, fosterage when a child under the age of two years has been fed by a woman other than his mother, or when the woman becomes his foster mother, a man cannot marry his foster mother or her daughter, i.e. foster sister.7
Section 5 (i) (ii) (iii), HMA [Hindu Marriage Act, 1955] 8 Section 13 HMA; Section 32 (b) and (bb) Parsi Marriage Act, 1936; Section 10 (1) (iii) Indian Divorce Act, 1869; under Section 2 (v) of the Dissolution of Muslim Marriages Act, 1939 14 marriage restraint; marriage of individuals within prohibited degrees of relationships, etc. Whereas some restrictions, in a sense codified and recognized existing customs – such as by enacting prohibited degrees of relationships, rule against insanity, rules enabling declaration of nullity or divorce on ground of impotence, etc., - others were meant to further interests of women and children and also enable exercise of choice.
23. Such reforming and codification, however, did not cover the entire field. For instance, in the field of succession and inheritance, the Hindu Succession Act, 1956 only enacts certain broad features, leaving untouched the rights of various communities and sections of Hindus, to work out their rights in succession to joint family, Hindu Undivided Family and coparcenary property- and this unwritten, uncodified law, (in many cases based on customs and local traditions) is enforced not only in regard to inheritance, but also in the field of taxation. Likewise, the law accommodates and accords primacy to custom [e.g., Section 2 (d) which states that persons other than Hindus- including Jews, Muslims and Christians who may be following Hindu customs, would continue to do so9; Section 7 which spells out the ceremonies of Hindu marriage, also states that they shall be based on “customary rites and ceremonies of either party thereto”; and similarly, customary divorce amongst Hindus is accorded primacy, by Section 29 (2)10]. Neither the Hindu Marriage Act, nor the Hindu Succession Act, apply to members of the Scheduled Tribe communities; the Hindu Adoptions and Maintenance Act, applies to them in a nuanced manner.11 The Hindu Minority and Guardianship 9 Section 2 which says that the Act does not apply to “(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.” 10 “29… (2) Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act.” 11 Section 2 (2), Hindu Marriage Act, and Hindu Succession Act, are identically worded, and state that:
“(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.” The Hindu Adoptions and Maintenance Act, 1956 is worded differently, and covers, inter alia, 15 Act, 1956, on the other hand, has a provision similar to the one under the Hindu Minority and Maintenance Act as well as one which excludes members of the scheduled tribe communities12. In the latest three judge bench decision of this court, in Revanasiddappa v. Mallikarjuna13, this court clarified that with the enactment of Section 16 of the HMA, the legitimacy conferred upon children born of void or voidable marriages would be that they are “entitled only to a share in their parent’s property but cannot claim it of their own right as a consequence of which they cannot seek partition during the life-time of their parents”. The court also held that they cannot claim any rights other than what was expressly provided for. Thus, uncodified law and custom was upheld.
24. Legislative action initiated at different points in time thus were reformatory or meant to effectuate certain fundamental rights. Practices and customs which had resulted in the degradation or diminution of individuals, seen as inconsistent and abhorrent to democratic society, were sought to be eliminated by these laws. When codification attempts resulted in residual discrimination, the courts stepped in to eliminate and enforce the fundamental rights [Independent Thought v. Union of India & Anr., (hereafter, “Independent Thought”)14; Shayara Bano v. Union of India & Anr.15, etc.].
25. The only legislations which come to one’s mind which in fact created social status or facilitated the status of individuals in private fields are the Special Marriage Act, 1954, the Protection of Women from Domestic Violence Act, 2005 (“DV Act”), and Section 41 of the Juvenile Justice (Care and Protection of Children) Act (which enables adoption amongst members of all faiths and “(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged;” 12 Section 3 (2) states that “(2) Notwithstanding anything contained in sub-section (1) nothing contained in this Act shall apply to the members of any scheduled Tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.” 13 2023 INSC 783; ; 2023 SCC OnLine SC 1087 14 2017 (13) SCR 821 15 2017 (9) SCR 797 16 communities). The latter, i.e., the provision enabling adoption was preceded by certain guidelines which facilitated inter-country adoptions. These guidelines, initially pioneered in the judgment of this court in Laxmi Kant Pandey v. UOI16 - were accepted. Executive instructions filled in the vacuum to some extent assimilating the guidelines of the court but at the same time the limitation in law that prevented adoption of children from different faiths and backgrounds, persisted. These limitations were finally overridden through the enactment of the Juvenile Justice Act, 2016. The Protection of Women from Domestic Violence Act, 2005 which was for the purpose of more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family. For the first time, a legal status was given to unmarried couples, which enabled women, subjected to domestic violence, to the right to residence (quite apart from remedies through its provisions). The culture of the Constitution, thus, has impelled the removal of barriers which hitherto existed. Traditional barriers – such as those based on social practice, and stereotypes such as gender roles, have, through express constitutional provisions like Articles 14, 15 and 16 which shaped legislation (and where this fell short, through judicial intervention), been overcome and in some cases eliminated.
26. The role of the legislature has been to act as codifier, and in many instances, not enact or codify existing customs or practices, and, wherever necessary, intervene, and in furtherance of Article 14 and 15(3) enact laws. Parliament, has intervened and facilitated creation of social status (marriage) through SMA, and enabled the creation of the institution of adoption, which was available amongst only certain communities. These, and other legislative interventions, are a result of state interest in reforms or furthering the interests of given communities or persons. For these reasons, we do not particularly subscribe to the characterisation of ‘democratizing intimate zones’ as discussed in the learned chief justice’s draft 16 [1985] Supp. (3) SCR 71 17 opinion. These outcomes were driven by enacted law; furthermore, there was state interest, which impelled regulation of such relationships, as for instance, in ensuring that the minimum age for marriage of girls. Likewise, there is state interest in regulating what kind of relationships, i.e. prohibited degrees of relationship, should be enacted as disqualifications to marriage. Marital “offences” such as desertion, or “cruelty” [not confined to physical violence or cruelty] are also grounds afforded to spouses, to seek matrimonial remedies. The absence of such legislation would have meant that children of any age, would continue to have been married off, much to the peril of the girl child’s health and life; likewise, the codification and enactment of prohibited degrees of relationships, were meant to further certain public health interests.
III. Tracing the rights enjoyed by queer persons A. The trinity - autonomous choice, dignity and non-discrimination i. Importance of personal choice under the Constitution
27. The journey of our constitutional progression, and our understanding of the personal liberties, especially right to life (Article 21) and equality (Article 14) has peeled and laid bare, so to say, multiple layers of prejudice, insensitivity and indifference of the social order or other collectives, in regard to a person’s freedom to exercise her volition, and free will, in several matters. For instance, a woman’s choice and bodily autonomy in regard to exercise of her reproductive rights has been acknowledged as a fundamental right–- integral to the right to life, in Suchita Srivastava & Ors. v. Chandigarh Administration17 reiterated in Devika Biswas v. Union of India18; X v. Principal Secretary, Health and Family Welfare Department (hereafter, “X v. Principal Secretary”)19; Independent Thought (supra) and other decisions.
172009 (13) SCR 989. This court held that “a woman's right to make reproductive choices” is “a dimension of 'personal liberty' as understood under Article 21”.
182016 (5) SCR 773 19 2022 (7) SCR 686 18
28. A person’s autonomy to choose a spouse or life partner, has been declared as integral to one’s fundamental right to live: in Asha Ranjan v. State of Bihar20, this choice of a “partner in life” was held to be “a legitimate constitutional right” that is “founded on individual choice” and the court decried the concept of "class honour" or "group thinking" which acted as barriers from the exercise of free choice. Similarly, In re [Gang-Rape Ordered by Village Kangaroo Court in W.B.,21 echoed the same idea and said that the state is “duty-bound” to protect the fundamental rights “and an inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage.” Shafin Jahan v. Asokan K.M & Ors., (hereafter, “Shafin Jahan”)22, brought home that expressing choice is in “accord with the law” and is “acceptance of individual identity.”23
29. The nine-judge decision in K.S. Puttaswamy v. Union of India (hereafter, “K.S. Puttaswamy”)24 through Dr. Chandrachud J writing for himself and five other judges, in several places, explored the various nuances of the right to privacy, and observed that “personal choices governing a way of life are intrinsic to privacy”.
30. The choice of a woman to seek employment, was upheld in Anuj Garg v. Hotel Association of India25 where gender and age barriers were held unconstitutional; the choice of an individual patient has been held to exercising his (or her) legal right to euthanasia (or to his relations in certain circumstances, particularly when the patient is unconscious or incapacitated to take a decision), in Common Cause (A Regd. Society) v. Union of India (UOI) & Ors (hereafter, “Common Cause”)26. Traditional barriers to temple entry based on gender was 20 2017 (1) SCR 945 21 (2014) 4 SCC 786 22 2018 (4) SCR 955 23 Choice was also the central theme, in Gian Devi v. Superintendent, Nari Niketan (1976) 3 SCC 234, Soni Gerry v. Gerry Douglas (2018) 2 SCC 197 and Nanda Kumar v. State of Kerala (2018) 16 SCC 602 24 2017 (10) SCR 569 25 2007 (12) SCR 991 26 2018 (6) SCR 1 19 the subject matter of this court’s ruling in Indian Young Lawyers Association & Ors. v. the State of Kerala & Ors.27).
ii. Dignity as a dimension of equality and all our liberties
31. The promise of the Preamble to the Constitution is of 'fraternity’ “assuring power, conflicts, and oppression, denial of participation. Quite naturally, these occupied centre-stage in our struggle for Swaraj. We did not strive merely for freedom from the shackles of a foreign power; our founders realized that millennia old practices of marginalization, oppression and exclusion produced humiliation, resulting in dehumanization of the human “self”. The relation of self to other self, the dominant or powerful self to the oppressed self, ventures on the concept of equality. It thus tries to eliminate untouchability, sex and caste-based discrimination, and ensure dignity.
32. Dignity is understood to mean the intrinsic worth of a person or the inherent value of a human being which entitles one to respect. The crucial aspect of substantive dignity lies in the state’s role in providing basic conditions of life which enable individuals to fully realise the potential of intrinsic dignity by living, what is called, a ‘dignified life’.
33. In the Indian context the idea of equality and dignity is to reach its constitutional commitment to be a republic, based on democracy. In Francis Coralie Mullin v. Administrator, Union Territory of Delhi28, this court said that the “right to life includes the right to live with human dignity”. Prem Shankar Shukla v. Delhi Admn29 voiced the same idea, i.e. that the Preamble set the “humane tone and temper of the Founding Document and highlights justice, equality and the dignity of the individual.” The court went on to hold that Article 27 2018 (9) SCR 561 28 1981 (2) SCR 516 29 1980 (3) SCR 855 20 21 “is the sanctuary of human values, prescribes fair procedure and forbids barbarities, punitive or procedural”.
34. This court, in Jeeja Ghosh v. Union of India30, spoke about human dignity as a “core value” and that the “right to life is given a purposeful meaning by this Court to include right to live with dignity”. The court quoted from Aharon Barak31 that human dignity has a “central normative role” and that as a constitutional value it is “the factor that unites the human rights into one whole. It ensures the normative unity of human rights” expressed in different ways i.e., normatively as a basis for constitutional rights; an interpretive principle for determining the scope of constitutional rights and that dignity has “an important role in determining the proportionality of a statute limiting a constitutional right.” In Kesavananda Bharati v. State of Kerala (hereafter, “Kesavananda Bharti”)32 too the value of dignity was underlined: “the basic dignity of man does not depend upon the codification of the fundamental rights nor is such codification a prerequisite for a dignified way of living”. This view has been adopted in several other decisions. It would be to borrow the words of Justice K.K. Mathew “an idle parade of familiar learning to review the multitudinous cases”33 underpinning this aspect.
35. This court in K.S. Puttaswamy (supra) too, recognized the value of dignity34. The judgment of this court in National Legal Services Authority v. Union of India & Ors., (hereafter, “NALSA”)35 is significant; it underlines how dignity can be said to form the basis of enjoyment of fundamental freedoms.
302016 (4) SCR 638 31 Aharon Barak "Human Dignity - The Constitutional Value and the Constitutional Right" Cambridge University Press (2015) 32 1973 Supp SCR 1 33 State Of Gujarat And Another v. Shri Ambica Mills Ltd 1974 (3) SCR 760 34 This formulation was followed in X v. The Principal Secretary (supra). In Navtej Johar (supra), Dipak Misra, J, said that “[t]his is the essence of dignity and we say, without any inhibition, that it is our constitutional duty to allow the individual to behave and conduct himself/herself as he/she desires and allow him/her to express himself/herself, of course, with the consent of the other. That is the right to choose without fear. It has to be ingrained as a necessary prerequisite that consent is the real fulcrum of any sexual relationship.”.
35(2014) 5 SCR 119 21
36. The constitutional emphasis on dignity is not without a reason. Ambedkar, and several of our constitution framers, meticulously sought to carve out of the remnants of a socially repressive, hierarchical, and unequal society a modern constitution, reflecting the aspirations of a confident people, in a vibrant democracy. The society which our constitution created was to emerge out of darkness of caste and other forms of social prejudice and oppression, into the light of the rule of law, social justice, and egalitarianism. To Ambedkar and other constitution makers, political freedom (swaraj) meant precisely the freedom to make the self, to make choices with dignity, to break from historical suffering and humiliation. The drafting history of the equality code (Articles 14, 15, 16, 17 and
18) bear poignant testimony to this aspect.
37. Dignity has both an internal and external aspect. In its internal context, dignity and privacy are intrinsically twined. In its external context, dignity is multidimensional: it is a right to be treated as a fellow human, with all attributes of a human personality, which is, the right and expectation to be accorded due respect, treated with dignity and equal worth. Denial of these, has a disproportionate impact on the individual: they are diminished in their own eyes, and the rest of the world, resulting in a loss of one’s self worth and moral worth. This is the vision of equality, social justice, welfare and dignity which our Constitution articulates.
iii. Equality, non-discrimination and non-exclusion
38. The equality code - Articles 14, 15, 16, and 17 (and Articles 23 and 24), so referred to in various previous decisions of this Court - for instance as the constitution’s “identity” in M. Nagaraj v. Union of India (hereafter, “M. Nagaraj”)36 is not a “wooden” equality before law and equal protection of law. It contains specific injunctions prohibiting the state from discriminating on 36 2006 Supp (7) SCR 336 22 specifically forbidden grounds [such as caste, race, sex, place of birth, religion, or any of them, in Article 15; and caste, sex, religion, place of residence, descent, place of birth, or any of them, in Article 16]. The rooting of such explicit issues - commanding the state against discriminating on such specific heads, is therefore, as much a part of the equality code, as the principle of equality indorsed in Article
14. The inclusion of Article 17 enjoins the state to forbear caste discrimination, overtly, or through classification, and looms large as a part of the equality code and indeed the entire framework of the Constitution. The protected attribute of ‘sex’ has been held to include ‘sexual orientation’ and ‘gender expression’ by this court in NALSA (supra) and Navtej Johar & Ors. v. Union of India (hereafter, “Navtej Johar”)37.
39. The rationale for enacting proscribed grounds under Article 15 or 16 (or both) is the awareness of Constitution makers that courts could use these markers- or pointers of distinction, to determine if reasonable classification were permissible. Hence, absent the prohibited ground of sex, gender could have been a plausible basis for an intelligible differentia. To prevent such classifications specific proscribed grounds were enacted as injunctions against State action. The provisions, and the equality code, are consequently not only about the declaratory sweep of equality: but also about the total prohibition against exclusion from participation in specified, enumerated activities, through entrenched provisions. A closer look at Article 15, especially Article 15(2), would further show that likewise most of the proscribed grounds in Article 15(1) were engrafted to ensure that access to public resources - in some cases not even maintained by the state, but available to the public generally, could not be barred. This provision was made to right a historical wrong, i.e., denial of access to the most deprived sections of society of the most basic resources, such as water, food, etc. The aim of the Constitution was to act as the ultimate leveller, ensuring that equality in 37 (2018) 7 SCR 379 23 practice, and substance, became the constitutional culture of this great nation. Together with the affirmative action provisions - Articles 15(3) & (4), 16(4) & 16(5) was intended to guarantee that not mere facial discrimination was forbidden but that existing inequalities were ultimately eradicated. Flowing from these, this court has, time and again, emphasized that non-discrimination is essential for enjoyment of all rights and freedoms of citizens of our country, to realize their worth and potential.38
40. In the context of the present debate, in NALSA (supra), this court took note of the Yogyakarta Principles and principle on right to equality and non- discrimination enshrined therein which reads as:
“2. The rights to equality and non-discrimination - Everyone is entitled to enjoy all human rights without discrimination on the basis of sexual orientation or gender identity. Everyone is entitled to equality before the law and the equal protection of the law without any such discrimination whether or not the enjoyment of another human right is also affected. The law shall prohibit any such discrimination and guarantee to all persons equal and effective protection against any such discrimination.” In this backdrop, the declaration of law, in Navtej Johar (supra) has provided impetus, so far as LGBTQ+ persons are concerned. Consensual queer relationships are not criminalized; their right to live their lives, and exercise choice of sexual partners has been recognised. They are no longer to be treated as “sub-par humans” by law. Yet, that ipso facto, the petitioners allege, is not sufficient, because the fact that they are allowed to be by themselves, “let alone” in the privacy of where they live, is not adequate. Discrimination and prejudice faced by the queer community has been acknowledged, and discussed at length by this court in NALSA (supra) and Navtej Johar (supra). The draft opinion of the Chief Justice, also highlights these aspects, so is only briefly touched upon in the following section, for the sake of completeness.38
The principle of non-discrimination was explained in Rajive Raturi v. Union of India & Ors 2017 [12] SCR 827 as existing to “ensure that all persons can equally enjoy and exercise all their rights and freedoms. Discrimination occurs due to arbitrary denial of opportunities for equal participation”.24
B. Rights flowing from previous decisions of this court relating to the queer community
41. The Constitution assures dignity; also, various fundamental rights guarantee a panoply of rights (to equality, non-discrimination on enumerated grounds, to freedom of speech, expression, of association, of right to travel freely, of right to reside, of the right to trade, commerce and business, to personal liberty, freedom to profess one’s religion, all being important ones). Various rights not expressly stated or enumerated, have been declared as facets of the right to life - of livelihood, access to healthcare, right to shelter, right to a clean environment, etc.
42. Sexual relation between persons of the same sex was outlawed, by virtue of Section 377 of the IPC. It characterized such acts as “unnatural sex”, enacted an offence, and prescribed sentence. This provision was read down by a Division Bench ruling of the Delhi High Court in Naz Foundation v. State (NCT of Delhi) (hereafter, “Naz Foundation”)39, which de-criminalized consensual sex between persons of the same sex. However, Naz Foundation (supra) was over turned, and its holding disapproved by this Court in Suresh Kumar Kushal v. Naz Foundation40 that became the final word for a time so to say, resulting in the criminalization of physical intimacy between same sex consenting adults. Implicit in this was the chilling effect on the exercise of other freedoms by such couples particularly in exhibiting even bare, decent expressions of affection – which was a position that prevailed till the later five-judge bench decision in Navtej Johar (supra).
43. NALSA (supra) was a significant ruling regarding the rights of transgender persons. It was held that “discrimination on the ground of sexual orientation or gender identity, therefore, impairs equality before law and equal protection of law 39 (2009) 111 DRJ 1 (DB) 40 (2014) 1 SCC 1: (2013) 17 SCR 1019 25 and violates Article 14 of the Constitution of India”.41 This court, for the first time, recognized what now is obvious but was not perceived to be till then, i.e., that the transgender persons have the same rights and have to be treated as full citizens, entitled to their self-expression of gender identity. In other words, every human being’s right to assert what their gender is, not limited by what has been ascribed to them based on their sex at the time of birth. The court unequivocally declared that the right of transgender persons to non-discrimination is equally contained and resonates in the same manner as it does with other citizens. The court also acknowledged the right to self-determination of one's gender as intrinsic to Article 21 of the Constitution. The court further declared that necessarily, to realize such persons’ fundamental right to live with dignity under Article 21, extends to the right of equal access to all facilities to achieve full potential as human beings, such as education, social assimilation, access to public spaces and employment opportunities. The court also expressly alluded to their rights under Articles 15 and 16 of the Constitution of India. The court was cognizant of the acutest form of discrimination of such persons, resulting in their degradation. This declaration of the entitlement of the transgender persons sensitized the society to take measures for addressing their concerns, eventually paving the way for the enactment of the Transgender Persons (Protection of Rights) Act, 2019 which aims to entrench the principle of non-discrimination and entitles transgender persons to a range of statutory rights, which they can enforce.
44. The court’s intervention in the oft cited decisions on behalf of the petitioners has been to protect the citizens or those approaching the courts against threats of violence or creation of barriers in the exercise of free choice [Shakti Vahini v. Union of India (hereafter, “Shakti Vahini”)42, Lata Singh v. State of U.P (hereafter, “Lata Singh”), Shafin Jahan (supra), Laxmibai Chandaragi. v. State 41 Ibid.
422018 (3) SCR 770 26 of Karnataka43 respectively]. These decisions were based on the state’s duty to protect citizens and enable the exercise of their individual choice, in the face of external threats. Other decisions, such as Joseph Shine v. Union of India44, Navtej Johar (supra) and Independent Thought (supra) were instances where specific provisions that criminalized or made exceptions to criminal behaviour, were struck down or read down in the enforcement of the fundamental rights, i.e. Articles 14, 15(3) and 21. Along the way, K.S. Puttuswamy (supra) articulated the broadest right to privacy which embraces within its fold the right to exercise ones choice of a life partner and to lead their life free from external barriers.
C. Is there a fundamental right to marry?
45. This court has recognized that marriage is a social institution.45 As elaborated in Part I, marriage existed and exists, historically and chronologically in all of the senses - because people married before the rise of the state as a concept. Therefore, marriage as an institution is prior to the state, i.e., it precedes it. The status is still, not one that is conferred by the state (unlike the license regime in the US). This implies that the marriage structure exists, regardless of the state, which the latter can utilise or accommodate, but cannot be abolished as a concept. Under this view terms of marriage are set, to a large extent, independently of the state. Its source is external to the state. That source defines the boundaries of marriage. This implies that state power to regulate marriage does not sit easy with the idea of marriage as a fundamental right. In attempting to analyse the claim to a fundamental right to marry, there are primarily two 43 2021 (3) SCC 360 44 2018 (11) SCR 765 45 Sivasankaran v. Santhimeenal [2021] 6 SCR 169:“The norms of a marriage and the varying degrees of legitimacy it may acquire are dictated by factors such as marriage and divorce laws, prevailing social norms, and religious dictates. Functionally, marriages are seen as a site for the propagation of social and cultural capital as they help in identifying kinship ties, regulating sexual behaviour, and consolidating property and social prestige.” Likewise, in Indra Sarma v. V.K.V. Sarma [(2013) 14 SCR 1019] this court said that “The institutions of marriage and the family are important social institutions.” The same decision also recognized the centrality of tradition, and custom, while emphasizing that “Marriages in India take place either following the personal Law of the Religion to which a party is belonged or following the provisions of the Special Marriage Act.” 27 competing claims about the nature of marriage: one being that the state should exercise more control over marriage to support and protect “traditional purposes and perceptions” and the other, that each individual should have the right to define marriage for themselves and state involvement in marriage should be minimal.
46. If indeed there is a right to marry unless it is elevated to a right akin to Articles 17, 23, and 24, [which apply to both state and nonstate agencies and actors], it cannot be operationalized. These provisions, most emphatically create positive obligations; likewise Articles 15 (3), 15 (4) – and 15 (6), as well as Articles 16 (4), 16 (6) highlight state interest in creating conditions to further the goal of non-discrimination. Yet, the previous decisions of this court have carefully held such provisions to enable the state, and in a sense oblige it to take measures; but ruled out court mandated policies and laws.46 In our considered opinion, this is not however, one such case where the court can make a departure from such rule, and require the state to create social or legal status.
47. What is being asked for by the petitioners is state intervention in enabling marriage between queer or non-heterosexual couples. Civil marriage or recognition of any such relationship, with such status, cannot exist in the absence of statute. The demand, hence, is that of a right of access to a publicly created and administered institution. There is a paradox here or a contradiction, which runs to the root of the issue and weighs on this court’s mind, heavily - in that the creation of the institution, here depends on state action, which is sought to be compelled through the agency of this court.
48. Most of the precedents cited contain discussions on how the institution of marriage involves issues of basic importance. Many decisions, including Obergefell v. Hodges (hereafter, “Obergefell”)47, recall tradition, to underline that marriage is of utmost significance, and that it underlines the importance of 46 Andhra Pradesh Public Service Commission v. Baloji Badhvanath 2009 (5) SCR 668 47 576 US 644 (2015) 28 commitment of two individuals towards each other and that it is a foundational relationship of society. Traditions of marriage per se may not support the basis of recognition of marital relationship between non-heterosexual couples. Many decisions by the US courts, have underlined the rationale for declaring the right to marry a fundamental right as being essential to the orderly pursuit of Happiness (as it appears in their Declaration of Independence) by free persons. This strand of reasoning is apparent from Loving48 to Obergefell (supra).
49. This with respect is not sound - at least as applied to state licensing of marriage (as in the US), which is what civil marriage is. The fundamental importance of marriage remains that it is based on personal preference and confers social status. Importance of something to an individual does not per se justify considering it a fundamental right, even if that preference enjoys popular acceptance or support. Some may consider education to be fundamentally important in that they consider nothing less than a postgraduate degree is fundamental; there may be a large section of the people, who consider that access to internet is a fundamental right, and yet others, who may wish that access to essential medication is a fundamental right. All these cannot be enforceable rights, which the courts can compel the state or governance institutions to provide. These cannot result in demand for creation of a social institution, and in turn creation of status, through a statute. This result - i.e. recognition, can be achieved only by enacted law.
50. All decisions relied on by the petitioners – K.S. Puttaswamy (supra), Navtej Johar (supra), Shakti Vahini (supra) and Deepika Singh v. Central Administrative Tribunal49, contain broad observations with respect to individuals’ choice of their partner as also a reference as to non-conventional relationships. Some broad observations are undoubtedly to be found in these judgments they cannot be referenced to hold that a right to marry automatically flows in the 48 Loving v. Virginia, 388 US 1 (1967) 49 2022 (7) SCR 557 29 manner from the provisions of Part III which the petitioner asserts. There cannot, for the above reasons, be a per se assertion that there exists an unqualified right to marry which requires treatment as a fundamental freedom; we agree on this conclusion arrived at by the learned Chief Justice, and his analysis of Shakti Vahini (supra), Shafin Jahan (supra), Navtej Johar (supra), K.S. Puttaswamy (supra), and NALSA (supra) that the constitution does not expressly recognize a right to marry.
D. Right to ‘union’, or abiding relationship
51. The conclusion arrived at by the learned Chief Justice is that while there is no express fundamental right to marry, there is a right or freedom to enter into a union [spelt out in Navtej Johar (supra), K.S. Puttaswamy (supra), NALSA (supra), Shakti Vahini (supra), Shafin Jahan (supra), etc.] and that having regard to our constitutional values, which entail respect to the choice of a person whether or when to enter into marriage and the right to choose a marital partner. The learned Chief Justice also traces this right to enter into an abiding cohabitational relationship to express provisions of Article 19(1)(a), (c), and (e), Article 21, and Article 25.
52. While we agree, that there is a right - which we will characterise as a ‘right to relationship’ to avoid confusion – we squarely recognise it to fall within Article 2150, as already recognised in the afore-cited cases. The right to relationship here, includes the right 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 50 See Navtej Johar (supra). Some of the opinions, notably of Chief Justice Dipak Misra (with whom Justice Khanwilkar concurred) highlighted the need to protect choice of one’s partner, in case of non-heterosexual persons. Citing previous decisions of this court, including Shakti Vahini (supra)and Shafin Jahan (supra), Justice Dipak Mishra (Chief Justice, as he then was), concluded that:
“167. The above authorities capture the essence of the right to privacy. There can be no doubt that an individual also has a right to a union under Article 21 of the Constitution. When we say union, we do not mean the union of marriage, though marriage is a union. As a concept, union also means companionship in every sense of the word, be it physical, mental, sexual or emotional. The LGBT community is seeking realisation of its basic right to companionship, so long as such a companionship is consensual, free from the vice of deceit, force, coercion and does not result in violation of the fundamental rights of others.” (emphasis supplied) 30 privacy, autonomy and dignity. They are, like all citizens, entitled to live freely, and express this choice, undisturbed in society. Whenever their right to enjoyment of such relationship is under threat of violence, the state is bound to extend necessary protection. This is a natural consequence of this court’s judgments in Navtej Johar (supra), K.S. Puttuswamy (supra), Shafin Jahan (supra) and Shakti Vahini (supra).
53. The learned Chief Justice in a detailed discussion of the ‘goal of self- development’, rights under Article 19 (including the right to freedom of speech and expression, and to form ‘intimate’ associations, to settle in any part of India), Article 21, and Article 25, arrives at the conclusion that the right to union (or right to enter into an abiding cohabitational relationship) can be traced to these express provisions, which in turn enrich this right. Thereafter, having traced this right to union, it is propounded that the ‘positive’ postulate of fundamental rights (as explained in an earlier section of the draft opinion), necessitates or places a positive obligation on the State to accord recognition to such relationships/unions. This, in our considered opinion, is not necessary. Further, our point of disagreement is deepened by the discussion in Part D(v) and (vi) in the learned Chief Justice’s draft opinion, prior to the section on ‘the right to enter into a union’- which lays down a theory on the ‘positive postulates’ of fundamental rights and the consequential obligation on the State. For the reasoning elaborated in Part IV of our opinion, we cannot agree to this characterisation of the entitlement, or any corresponding state obligation to create a status through statute.
54. If it is agreed that marriage is a social institution with which the State is unconcerned except the limited state interest in regulating some aspects of it, does it follow that any section of the society (leaving aside the issue of rights of non- heterosexual couples) – which wishes for creation of a like social institution, or even an entry into a zone which is not popular or otherwise does not fall within the institution of marriage – can seek relief of its creation by court intervention?
31IV. Positive obligations in furtherance of fundamental rights
55. The conception of fundamental rights – in terms of their negative, and positive content – is a formulation that requires no citation. However, the extent to which this positive obligation may reach to, is where our reasoning arrives at the metaphorical fork in the road. Every fundamental right, is not enjoyed by an individual, to the same degree of absoluteness – for instance: Article 19 has a clear stipulation of reasonable restrictions for each freedom; Article 15 and 16 have a clear negative injunction on the State against discrimination, within which substantive equality is baked in and requiring the State to step in or facilitate; Article 25, is subject to other fundamental rights and freedoms under Part III, etc. There are restrictions, to the content of these rights. A discussion of Article 21 elucidates this point. However, even while tracing these numerous ‘unenumerated’ rights – the right to a clean environment, right to shelter, etc. – the courts have been (necessarily so) circumspect in how these can be enforced. Often, these rights have come to be enumerated in response to State action that threatened the freedom, or right directly or indirectly, thus compelling the litigant to invoke the jurisdiction of this court, to remind the State of the negative injunction that impedes its interference, and must guides its actions. Does this, however, mean that a litigant could knock on the doors of this court, seeking to enforce each of these unenumerated rights? A simple example would offer some clarity – consider a poet who wishes to share their work, with the public at large. Now provided that there is no direct restriction, or those in the nature of having a chilling effect, the State’s role in enabling or facilitating this freedom enjoyed by the poet, is limited. This court cannot direct that the State must create a platform for this purpose; this would be a stretch, in the absence of any overt or inert threat.
56. In the draft circulated by the Chief Justice, the reasoning that there is no fundamental right to marry and thereafter, nevertheless, to proceed to delineate the facets or features which unions other than marriage, are deprived of; merits a 32 closer look. The summation of various rights which such a couple is said to be deprived of, is used to delineate the contours of the right to enter into a union, and justify a positive obligation. There cannot be any doubt that the individuals have the choice of their life partners and the right to live the lives they wish to, undisturbed. This is the essence of what the jurisprudence of this Court has been so far, i.e., an explanation of the right to life and the other rights enumerated or discovered by interpretive process – privacy, choice, dignity etc.
57. Repeatedly, decisions of this court have emphasized on the non- discriminatory and positive content of certain fundamental rights (Articles 14, 15, 16, 17, 23 and 24). In fact, the court has underlined the obligations of the state to create conditions conducive to the exercise of the right to equality (i.e., substantive equality), and to realize fraternity [Refer: decisions in N.M. Thomas51 and Indra Sawhney52 which expanded the understanding of substantive equality, though without making enabling provisions enforceable by court]. This court has also in some decisions, accepted the argument that given the nature of fundamental rights, and its evolving content, in many circumstances, it might be necessary for the state to intervene and protect the fundamental right concerned thus creating an atmosphere conducive for the enjoyment of such right. Lata Singh (supra) dealt with honour killings of couples involved in inter-caste, inter- religious marriages; in Arumugam Servai v. State of Tamil Nadu53, where the issue was virulent caste slurs and violence, which were crimes, the court required administrative and police officials “to take strong measures to prevent such atrocious acts”. In Shakti Vahini (supra), which dealt with threats by khap panchayats, this court held that the state “is duty-bound to protect the fundamental rights of its citizens; and an inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage”. The court issued 51 State of Kerela v. N.M Thomas, (1976) 2 SCC 310 52 Indra Sawhney v. Union of India, (1992) Supp (3) SCC 217 53 2011 (5) SCR 488 33 directions requiring the state to take punitive and remedial measures, and that the state has a positive obligation to protect the life and liberty of persons.
58. In several decisions it has been recognised that the reason for entrenching Part III Rights - as for instance, in M. Nagaraj (supra) was to “withdraw certain subjects from the area of political controversy to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts….. Fundamental right is a limitation on the power of the State”. Rustom Cavasjee Cooper v. Union of India (hereafter, “R.C. Cooper”)54 is salient, for the observations it made about the common thread that runs through Part III rights, which again, sets out distinct enforceable rights:
“it is necessary to bear in mind the enunciation of the guarantee of fundamental rights which has taken different forms. In some cases it is an express declaration of a guaranteed right: Articles 29(1), 30(1), 26, 25 & 32; in others to ensure protection of individual rights they take specific forms of restrictions on State action--legislative or executive--Articles 14, 15, 16, 20, 21, 22(1), 27 and 28; in some others, it takes the form of a positive declaration and simultaneously enunciates the restriction thereon: Articles 19(1) and 19(2) to (6); in some cases, it arises as an implication from the delimitation of the authority of the State, e.g., Articles 31(1) and 31(2); in still others, it takes the form of a general prohibition against the State as well as others:
Articles 17, 23 & 24. The enunciation of rights either express or by implication does not follow a uniform pattern. But one thread runs through them: they seek to protect the rights of the individual or groups of individuals against infringement of those rights within specific limits. Part III of the Constitution weaves a pattern of guarantees on the texture of basic human rights. The guarantees delimit the protection of those rights in their allotted fields: they do not attempt to enunciate distinct rights.”
59. The right to freedom of speech, is distinct, because it - unlike others in Article 19, is preceded by the word “freedom” of speech and expression whereas the others are rights. Whilst this judgment does not call for elaboration on this distinction, yet the common element, in respect of all the rights spelt out in Article 19 is the assertion of the right, which is a curb or restraint, on state action, whose limits can only be through laws, made by the state, to promote some state concern, such as sovereignty and integrity of the state, etc. reasonably restricting speech 54 1970 (3) SCR 530 34 in the interests of inter alia, “public order, decency or morality”. The same pattern is followed in relation to freedom to associate by Article 19(4). In relation to the right under Article 19(1)(g) a broader state interest, inter alia, i.e., “in the interests of the general public”. These expressions are common grounds on which reasonable restrictions can be enacted, validly by law. Kharak Singh v. State of UP55, Bijoe Emmanuel v. State of Kerala56, and Union of India (UOI) v. Naveen Jindal & Ors.57 are all authorities for the proposition that regulating the exercise of rights guaranteed under Article 19(1)(a) to (e) and (g) - through reasonable restrictions, can be only through a law.
60. The judgment of the learned Chief Justice, propounded a theory of a unified thread of rights, entitlements flowing from it, and how lack of recognition, results in deprivation of specified rights under Articles 19 and 25 (in addition to Article
21). To the extent, that assertion of sexual or gender identity, in exercise of free speech, association, through express manifestations in whatever form (whether through speech, art, participation in processions, etc.), are concerned, one cannot join issue. Equally, if one has by some state process, measure or conduct been barred from expressing one’s choice, publicly, the reasonableness of that prohibition or order, can be tested on grounds enumerated in Article 19(2), if such barriers are through a valid law, or orders, traceable to law.
61. However, when the law is silent, and leaves the parties to express choice, Article 19(1)(a) does not oblige the state to enact a law, or frame a regulation, which enables the facilitation of that expression. All judgments, from Sakal Papers58, to Bennet Coleman59 and Express Newspapers60, etc. were based on the effect of laws or policies, based on statutory provisions. Equally, in the absence of a legal framework enabling citizens to form a particular kind of association (as 55 1964 (1) SCR 332 56 1986 (3) SCR 518 57 2004 (1) SCR 1038 58 Sakal Papers (P) Ltd v. Union of India 1962 (3) SCR 842 59 Bennet Coleman v. Union of India 1973 (2) SCR 757 60 Express Newspapers (P) Ltd. V. Union of India, (1959) 1 SCR 12 35 for instance recognition of a limited liability partnership, which was not recognized any legal status till recently)61 the court could not have validly created a regime enabling recognition or regulating such associations. Similarly, in the absence of any enacted law which obliges meaningful facilitation of transport such as roads, it is hard to visualize that a citizen can approach the Court and seek the construction of a road to enforce the right to travel [Article 19(1)(d)], or seek court’s intervention to create a network of roads or other modes of transportation. Likewise in the absence of a basic housing scheme again the court if approached for enforcement of Article 19(1)(e), would not call upon the State to create one either by framing a general legislative policy or through law. Furthermore, this Court has also recognized that, there can even be reasonable restrictions, in the acquisition and enjoyment of certain types of properties in many States. Given the nature of rights under Articles 19 and 21 the enjoyment of which are limited to the extent reasonable laws within the bounds of the specified provisions, enact in the legitimate jurisdiction of this court, it would be difficult to translate the positive obligations (or postulates) as articulated in the learned chief justice’s opinion.
62. History or traditions may not be the only methods to trace constitutional values which can arguably be the result of an evolving society. Yet the court cannot stray too far from the express provisions and the manner in which they are cast. In the case of free speech and expression, right to association and the other rights spelt out in Article 19 and the rights spelt out in Article 25, the core content of these are hard fought freedoms and rights primarily directed against state action and its tendency to curb them. To the question whether it is possible to locate an entitlement to lead to positive obligation and to facilitate the exercise of free speech, generally by mandating a horizontally applicable parliamentary law or legal regime, the answer would be a self-evident negative.
61The Limited Liability Partnership Act, 2008 36
63. There is no difficulty about the right of two consenting persons to decide to live together, to co-habit with each other, and create their unique idea of a home, unconstrained by what others may say. That is the natural sequitur to K.S. Puttaswamy (supra) and Navtej Johar (supra). Conduct hitherto criminalised, is now permissible. The liberative effect of Section 377 being read down is that two individuals, regardless of their sexual orientation are enabled to live together, with dignity, and also protected from any kind of violence, for living and existing together. Therefore, the right to be left alone, the right to exercise choice, the right to dignity, and to live one’s life, with the person of one’s choice, is an intrinsic and essential feature of Article 21 of the Constitution.
64. The idea that one right can lead to other rights, emanating from it, has been conclusively rejected by this court by seven judges, in All India Bank Employees Association v. National Industrial Tribunal62. That decision was quoted with approval in Maneka Gandhi v. Union of India (UOI) & Ors. , (hereafter, “Maneka Gandhi”)63:
“This theory has been firmly rejected in the All India Bank Employees Association's case and we cannot countenance any attempt to revive it, as that would completely upset the scheme of Article 19(1) and to quote the words of Rajagopala Ayyanger, J., speaking on behalf of the Court in All India Bank Employees Association's case "by a series of ever expending concentric circles in the shape of rights concomitant to concomitant rights and so on, lead to an almost grostesque result". So also, for the same reasons, the right to go abroad cannot be treated as part of the right to carry on trade, business, profession or calling guaranteed under Article 19(1)(g). The right to go abroad is clearly not a guaranteed right under any clause of Article 19(1)”
65. As the two 7-judge bench decisions have affirmed whilst there is no dispute that there is an interconnectedness of various fundamental rights, their manifestations in different forms especially under Article 19 and the distinct grounds on which they can be circumscribed, sets each freedom and right apart. While the right to free speech and expression may be exercised in conjunction 62 1962 (3) SCR 269 63 1978 (2) SCR 621 37 with the right to association and even the right to assemble and move, nevertheless the extent of the assertion of these rights, collectively, would depend on the circumstances of the case and the nature of the curbs imposed (by law). Thus, for instance, the right to protest in the form of a procession is subjected to the laws reasonably restricting movement in the larger interests of the public. It is questionable whether the imposition of valid restrictions and curbs in such circumstances can be successfully impugned only on the ground that their right to free speech and assembly are violated. In the case of both, if the restriction is valid for one fundamental right, it is equally valid for the others on an application of the test laid down in Maneka Gandhi (supra). Rather it is the test of reasonableness and the proximity to the disturbance of public order, when such restriction is imposed, that becomes the focal point of debate. Therefore, in the abstract every right enumerated in Article 19, and other Article 25, can be exercised freely without hindrance by all. However, it is the assertion of the right, in the face of some threat by state action or despite state protection, which becomes the subject of court scrutiny. The extent of right to free speech is subject to reasonable restrictions, to further inter alia, “public order” or “decency” and “morality”. The right to association is hedged by reasonable restrictions inter alia, in furtherance of “public order or morality”. The right to travel and settle in any part of the country, is subject to reasonable restrictions in the “interests of the general public” or “for the interests of any scheduled tribe”. Likewise, the freedom of conscience is both internal, and external. As long as an individual exercises it, from within, and in privacy, there can be ordinarily no inroads into it; its external manifestation, may call for scrutiny, at given points in time.
66. The right to freedom of conscience is also subject to other provisions of Part III, and any measure, in the interests of public order or morality. It is thus, open to all to exhibit and propagate their beliefs and ideas through overt “for the edification of others”, regardless if the propagation is made by a person in his individual capacity or on behalf of any church or institution….exhibition of such 38 “belief, is, as stated above, subject to State regulation imposed to secure order, public health and morals…”64 This broad understanding and enunciation of the freedom of conscience has remained unchanged. The state on occasions has intervened to promote social welfare and reforms; this court has intervened when state action was based on a practise found inconsistent with the right to equality and dignity.
67. We do not therefore, agree with the learned Chief Justice who has underlined that the positive postulate of various rights, leads to the conclusion that all persons (including two consenting adult queer persons) have an entitlement to enter into a union, or an abiding cohabitational relationship which the state is under an obligation to recognize, “to give real meaning” to the right. There is no recorded instance nor was one pointed out where the court was asked to facilitate the creation of a social institution like in the present case.
68. There are observations from the judgment of the (then Justice Chandrachud and) now Chief Justice) Justice D.Y. Chandrachud, in Navtej Johar (supra), of how social institutions must be arranged:
“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. The law provides the legitimacy for social institutions. In a democratic framework governed by the Rule of law, the law must be consistent with the constitutional values of liberty, dignity and autonomy.” These observations underscored the need to respect and give worth to the choice of queer couples. The observations were in the context of criminalization of consensual sexual conduct between queer couples. The observations, however, have tended to point to the direction that there should be some social ordering of institutions, which not merely accommodate such choice, but facilitate its meaningful exercise beyond the confines of their right to privacy and to live together. While the decision’s decriminalising impact is undoubted, and not 64 Ratilal Panachand Gandhi v. State of Bombay 1954 (1) SCR 1055 39 contested, yet the broader observations obliging social institutions to accommodate and facilitate exercise of choice fully were not necessary. In one sense, they travelled beyond the scope of the court’s remit and have to be viewed as obiter dicta. That the State should or ought to order such social institutions, is different from a direction issued by this court, which they must carry out; the latter is what we take exception to, and place our reservations against.
69. Therefore, even if we were to, for argument sake, recognise an entitlement under the Constitution to enter into an abiding cohabitational relationship or union– in our opinion, it cannot follow to a claim for an institution. There are almost intractable difficulties in creating, through judicial diktat, a civil right to marry or a civil union, no less, of the kind that is sought by the petitioners in these proceedings. “Ordering a social institution” or re-arranging existing social structures, by creating an entirely new kind of parallel framework for non- heterosexual couples, would require conception of an entirely different code, and a new universe of rights and obligations. This would entail fashioning a regime of state registration, of marriage between non-heterosexual couples; the conditions for a valid matrimonial relationship amongst them, spelling out eligibility conditions, such as minimum age, relationships which fall within “prohibited degrees”; grounds for divorce, right to maintenance, alimony, etc.
70. As a result, with due respect, we are unable to agree with the conclusions of the learned Chief Justice, with respect to tracing the right to enter into or form unions from the right to freedom of speech and expression [Article 19(1)(a)], the right to form associations [Article 19 (1)(c)], along with Article 21 and any corresponding positive obligation. It is reiterated that all queer persons have the right to relationship and choice of partner, co-habit and live together, as an integral part of choice, which is linked to their privacy and dignity. Any further discussion on the rights which consenting partners may exercise, is unnecessary. No one has contested that two queer partners have the rights enumerated under Article 19 (1)(a); (c), and (d), or even the right to conscience under Article 25.
40The elaboration of these rights, to say that exercise of choice to such relationships renders these rights meaningful, and that the state is obliged to “recognise a bouquet of entitlements which flow from such an abiding relationship of this kind” is not called for. We therefore, respectfully disagree with that part of the learned Chief Justice’s reasoning, which forms the basis for some of the final conclusions and directions recorded in his draft judgment.
V. Inapplicability of the Special Marriage Act A. Challenge to the SMA on the ground of impermissible classification
71. The petitioners complained that provisions of the SMA, inasmuch as they excluded, or do not provide for marriage of non-heterosexual couples, is discriminatory, because the classification made in its various provisions are heteronormative, thus discriminating against non-heterosexual couples. This exclusion, is the basis of their challenge.
72. Hostile classification, which results in exclusion from benefits of a statute or policy, is based on the understanding that where “equals are treated differently, without any reasonable basis” as held in D.S. Nakara v. Union of India65:
“The classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question. There ought to be causal connection between the basis of classification and the object of the statute. An executive action could be sustained only if the twin tests of reasonable classification and the rational principle co-related to the object sought to be achieved are satisfied.”
73. What is an “intelligible differentia” on which the classification is to be drawn distinguishing objects or persons, or conditions, for the purpose of legislative or executive policy? The premise of classification is to discriminate. The theory of permissible classification rests, therefore, on the basis for 65 1983 (2) SCR 165 41 differentiation, and its relation to the object of the measure or the law. Permissible classification, therefore, should result in valid differentiation; but it crosses the line when it has a discriminatory effect, of excluding persons, objects or things which otherwise form part of the included group. Kedar Nath Bajoria v. State of West Bengal66 explained that Article 14 cannot mean that “all laws must be general in character and universal in application and that the State is no longer to have the power of distinguishing and classifying persons or things for the purposes of legislation. To put it simply, all that is required in class or special legislation is that the legislative classification must not be arbitrary but should be based on an intelligible principle having a reasonable relation to the object which the legislature seeks to attain.”
74. After a fairly detailed examination of previous precedents, recently, in Chandan Banerjee v. Krishna Prasad Ghosh67, this court explained the principles applicable to determine whether classification by any law or policy can be upheld:
“27. The principles which emerge from the above line of precedents can be summarised as follows:
(i) Classification between persons must not produce artificial inequalities.
The classification must be founded on a reasonable basis and must bear nexus to the object and purpose sought to be achieved to pass the muster of Articles 14 and 16;
(ii) Judicial review in matters of classification is limited to a determination of whether the classification is reasonable and bears a nexus to the object sought to be achieved. Courts cannot indulge in a mathematical evaluation of the basis of classification or replace the wisdom of the legislature or its delegate with their own; [..]” This court, in Transport & Dock Workers Union v. Mumbai Port Trust68 explained how differential treatment may not always result in discrimination and “it violates Article 14 only when there is no conceivable reasonable basis for the differentiation.”
75. The differentiation or classification has to be based on the object or end sought to be achieved: a facet highlighted in Union of India v. M.V. Valliappan69, 66 [1954] 1 SCR 30 67 [2021] 11 SCR 720 68 (2010) 14 SCR 873 69 1999 (3) SCR 1146 42 where the court held that if there is a differentiation, having rational nexus with the “object sought to be achieved by particular provision, then such differentiation is not discriminatory and does not violate the principles of Article 14 of the Constitution”. In fact, earlier, this court in State of J&K v. Triloki Nath Khosa70 ruled that “the object to be achieved” ought not to be “a mere pretence for an indiscriminate imposition of inequalities and the classification” should not be “characterized as arbitrary or absurd”.
76. The discussion on equality and the limits of permissive classification were conveniently summarized by the seven-judge bench in In Re the Special Courts Bill, 1978 (hereafter, “Re Special Court’s Bill”)71. Some of the propositions were stated as follows:
“[..] (2).The State, in the exercise of its governmental power, has of necessity to make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws.
(3). The constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. Therefore, classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things. The courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not palpably arbitrary.
(4). The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same.
*** (6) The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degree of evil, but the classification should never be arbitrary, artificial or evasive.70
1974 (1) SCR 771 71 (1979) 2 SCR 476 43 (7) The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act.
(8) The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. In short, while Article 14 forbids class discrimination by conferring privileges or imposing liabilities upon person arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liabilities proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense abovementioned.
*** (11) Classification necessarily implies the making of a distinction or discrimination between persons classified and those who are not members of that class. It is the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public. Indeed, the very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality.” The differentiation, therefore, is to be discerned from gathering of the object sought to be achieved by the enactment.
77. For a moment, if it is assumed (as the petitioners argue) that the classification is suspect, because non-heterosexual couples are not provided the facility of marriage, yet such “under classification” is not per se discriminatory. This aspect was highlighted by this court in Ambica Mills72:
“Since the classification does not include all who are similarly situated with respect to the purpose of the law, the classification might appear, at first blush, to be unreasonable. But the Court has recognised the very real difficulties under which legislatures operate — difficulties arising out of both the nature of the legislative process and of the society which legislation attempts perennially to re-shape — and it has refused to strike down indiscriminately all legislation embodying classificatory inequality here under consideration”
78. In an earlier decision, this court upheld the tax imposed upon joint families, in Kerala, based on Marumakkattayam law. The law imposed expenditure tax 72 State Of Gujarat And Another v. Shri Ambica Mills Ltd 1974 (3) SCR 760 44 upon those professing the Marumakkattayam unit and defined it in such a manner that it omitted to include Mapillas (non-Hindus) who also followed that system. This court held that such under inclusion did not attract the vice of discrimination, in N. Venugopala Ravi Varma Rajah v. Union of India73 and observed:
“the mere fact that the law could have been extended to another class of persons who have certain characteristics similar to a section of the Hindus but have not been so included is not a ground for striking down the law.”
79. The question of some categories being left out, when a new legislation is introduced, was the subject matter of the decision in Ajoy Kumar Banerjee & Ors. v. Union of India & Ors.74 where it was held that:
“[…] Article 14 does not prevent legislature from introducing a reform i.e. by applying the legislation to some institutions or objects or areas only according to the exigency of the situation and further classification of selection can be sustained on historical reasons or reasons of administrative exigency or piecemeal method of introducing reforms. The law need not apply to all the persons in the sense of having a universal application to all persons. A law can be sustained if it deals equally with the people of well-defined class- employees of insurance companies as such and such a law is not open to the charge of denial of equal protection on the ground that it had no application to other persons.” These judgments have underlined that exclusion or under inclusion, per se, cannot be characterised as discriminatory, unless the excluded category of persons, things or matters, which are the subject matter of the law (or policy) belong to the same class (the included class).
80. The statement of objects and reasons of the SMA read as follows:
“Statement of Objects and Reasons:
1. This Bill revises and seeks to replace the Special Marriage Act of 1872 so as to provide a special form of marriage which can be taken advantage of by any person in India and all Indian nationals in foreign countries irrespective of the faith which either party to the marriage may profess. The parties may observe any ceremonies for the solemnisation of their marriage, but certain formalities are prescribed before the marriage can be registered by the marriage officers. For the benefit of Indian citizens abroad, the Bill provides for the appointment of Diplomatic and Consular Officers as Marriage Officers for solemnising and registering marriages between citizens of India in a foreign country.73
1969 (3) SCR 827 74 1984 (3) SCR 252 45 Provision is also sought to be made for permitting persons who are already married under other forms of marriage to register their marriages under this Act and thereby avail themselves of these provisions. The Bill is drafted generally on the lines of the existing Special Marriage Act of 1872 and the notes on clauses attached thereto explain some of the changes made in the Bill in greater detail.”
81. The Statement of Objects and Reasons of SMA clearly suggests that the sole reason for the enactment of the Act was to replace the earlier colonial era law and provide for certain new provisions; it does not refer to any specific object sought to be achieved or the reasons that necessitated the enactment of the new Act other than that it was meant to facilitate marriage between persons professing different faiths.
82. If one looks at the enacted provisions, especially Sections 19-21 and 21A, Sections 24, 25, 27, 31, 37 and 38, of SMA, there can be no doubt that the sole intention was to enable marriage (as it was understood then, i.e., for heterosexual couples) of persons professing or belonging to different faiths, an option hitherto available, subject to various limitations. There was no idea to exclude non- heterosexual couples, because at that time, even consensual physical intimacy of such persons, was outlawed by Section 377 IPC. So, while the Act sought to provide an avenue for those marriages that did not enjoy support in society, or did not have the benefit of custom to solemnise, it would be quite a stretch to say that this included same sex marriages. Therefore, the challenge to the constitutionality of the statute, must fail. It is settled by decisions of the court that as long as an objective is clearly discernible, it cannot be attacked merely because it does not make a better classification. The need for a law or a legal regime that provides or facilitates matrimony of queer couples is similar, to the need to facilitate inter- faith marriages which is what drove the Parliament to enact the SMA.
83. The next question urged is that the passage of time, has rendered the exclusion of queer couples, the benefit of SMA, discriminatory. This line of argument, is based on this court’s reasoning that with passage of time, a classification which was once valid, could become irrelevant, and insupportable, 46 thus discriminatory. The first of such decisions was Motor and General Traders v. State of AP75 wherein a provision of the state rent control legislation (which exempted premises constructed after 26.08.195776) was under challenge. The idea was to provide impetus to construction of houses; however, the long passage of time resulted in two classes of tenants, i.e., those residing in older premises, who were covered by the law, and those who lived in premises constructed later. This court held that the continued operation of such exemption, rendered it unconstitutional:
“There being no justification for the continuance of the benefit to a class of persons without any rational basis whatsoever, the evil effects flowing from the impugned exemption have caused more harm to the society than one could anticipate. What was justifiable during a short period has turned out to be a case of hostile discrimination by lapse of nearly a quarter of century. The second answer to the above contention is that mere lapse of time does not lend constitutionality to a provision which is otherwise bad.”
84. Almost identically, in Rattan Arya v. State of T.N.77 the validity of Section 30(ii) of the Tamil Nadu Buildings (Lease and Rent) Control Act, 1960 was under
challenge, this court held that the provision which exempted tenants of “residential buildings” paying monthly rent of more than Rs 400 from the protection of the said Rent Control Act, whereas no such restriction was imposed in respect of tenants of “non-residential buildings” under the said Act. This court upheld the challenge, and held that “a provision which was perfectly valid at the commencement of the Act could be challenged later on the ground of unconstitutionality and struck down on that basis. What was once a perfectly valid legislation, may in course of time, become discriminatory and liable to challenge on the ground of its being violative of Article 14.” The judgment cited by the petitioners, that is Satyawati Sharma v. Union of India78 too dealt with rent legislation which differentiated between non-75
1984 (1) SCR 594.76
Section 32, clause (b) of Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1954 77 1986 (2) SCR 596 78 2008 (6) SCR 566 47 residential and residential buildings, in respect of the remedy of eviction, on ground of bona fide requirement.
85. In all the judgments cited by petitioners, the court was able to discern or find that a classification, made at an earlier point in time, had lost its relevance, and operated in a discriminatory manner. In some circumstances, rather than declaring the entire law void, this court “read down” the relevant provision to the extent the statute could be so read. In the present case, the petitioner’s arguments with respect to “reading down” provisions of the SMA are insubstantial. The original rationale for SMA was to facilitate inter-faith marriages. That reason is as valid today as it was at the time of birthing that law. It cannot be condemned on the ground of irrelevance, due to passage of time. It would be useful to recall principle (9)79 of the opinion in Re Special Court’s Bill (supra). The classification was primarily not between heterosexual and non-heterosexual couples, but heterosexual couples of differing faiths. All its provisions are geared to and provide for a framework to govern the solemnisation, or registration, of the marital relationship, which replicates the status that different personal laws bestow. Since there was no one law, which could apply for couples professing differing religions, the SMA created the governing norms- such as procedure, minimum age, prohibited degree of relationship and forbidden relationships for the male and female spouses respectively (through different schedules); the grounds of divorce, etc. The relevance of SMA has gained more ground, because of increasing awareness and increasing exercise of choice by intending spouses belonging to different faiths. It cannot be said, by any stretch of the imagination that the exclusion of non-heterosexual couples from the fold of SMA has resulted in its ceasing to have any rationale, and thus becoming discriminatory in 79 “(9) If the legislative policy is clear and definite and as an effective method of carrying out that policy a discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons, the statute itself cannot be condemned as a piece of discriminatory legislation.” 48 operation. Without a finding of that kind, it would not be open to the court to invoke the doctrine of “reading down”.
86. We, therefore, agree with the reasoning elaborated by the Chief Justice, Dr. Chandrachud, J that the challenge to the SMA fails.
B. Interpretation of provisions of SMA
87. The provisions of SMA are incapable of being “reading down”, or interpreted by “reading up” in the manner suggested by the petitioners. We have supplemented the Chief Justice’s conclusions, with further reasoning briefly below.
88. The petitioners’ efforts have been aimed at persuading this court to interpret the provisions of SMA in a manner, that accommodates non- heterosexual couples and facilitates this marriage. Their arguments were centred around reading its specific provisions – [Section 2 (b) read with Part I (for a male) and Part II (for a female) (degrees of prohibited relationships), Section 4 (c), Section 12, 15, 22, 23, 27(1); 27(1A) (special ground of divorce for wife), 31(1)(iiia) and (2) (special provision for jurisdiction in case of proceeding for the wife), 36 and 37 (alimony for the wife), 44 (bigamy)] – which present a dominant underlying heteronormative content. They argue that this court should adopt a purposive construction of the provisions of SMA, and interpret it in light of this court’s previous decisions in Dharani Sugars and Chemicals Ltd v. Union of India (hereafter, “Dharani Sugars”)80 and X v. Principal Secretary (supra).
89. In Dharani Sugars, the challenge was against a new policy introduced by the Reserve Bank of India (RBI). The petitioners contented that there was no authorization under the RBI Act to frame the impugned policy. Although the court acknowledged that new facts can influence the interpretation of existing law, it ultimately upheld the policy based on existing provisions that empowered the RBI 80 [2019] 6 SCR 307 49 to issue such policies. A careful examination of this judgment would reveal that even though discussion on the interpretation that “unless a contrary intention appears, an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them” indeed occurred81; but, the court also noticed that “this doctrine does not however mean that one can construe the language of an old statute to mean something conceptually different from what the contemporary evidence shows that Parliament must have intended”82.
90. This court, in X v. Principal Secretary (supra) while reading down the exclusion of unmarried women from the benefit of the Medial Termination of Pregnancy Act, 1971 (MTP Act), also relied on Dharani Sugars (supra) to invoke the principle that a statute “always speaks”. Noting that the Act, and more so its amendment, was to enable women to terminate unwanted pregnancies, the reasons for which could be manifold, the court held that such exclusion was arbitrary and discriminatory. Further, the court relied on Badshah v. Sou. Urmila Badshah Godse83 which held that “change in law precedes societal change and is even intended to stimulate it” and that “just as change in social reality is the law of life, responsiveness to change in social reality is the life of the law”. Similarly, in All Kerala Online Lottery Dealers Association v. State of Kerala & Ors.,84 this court referred to decision of court in State v. SJ Choudhary85 wherein it was observed that “in its application on any date, the language of the Act, 81 This court indeed cited a number of decisions of the House of Lords, or the UK Court of Appeals: Royal College of Nursing of the United Kingdom v. Department of Health and Social Security, 1981 (1) All ER 545 [HL]; Comdel Commodities Ltd. v. Siporex Trade S.A., 1990 (2) All ER 552 [HL]; McCartan Turkington Breen (A Firm) v. Times Newspapers Ltd., [2000] 4 All ER 913; R v Ireland, R v Burstow 1997 (4) All ER 225; Birmingham City Council v. Oakley [2001] 1 All ER 385 [HL].
82In this context, the court took note of Goodes v East Sussex County Council (2000 [3] All ER 603) and Southwark London Borough Council v. Mills (1999 [4] All ER 449).
83[2013] 10 SCR 259 84 [2015] 10 SCR 880 85 1996 (2) SCC 428 50 though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law.”86
91. Furthermore, the petitioners relied on the interpretation of this court, in Githa Hariharan v. Union of India87, wherein the court construed the word 'after' in Section 6(a) of the Hindu Minority and Guardianship Act, 1956 as meaning "in the absence of - be it temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise” - thus, saving it from the vice of discrimination. Reliance was also placed on Association of Old Settlers of Sikkim & Ors. v. Union of India88 where an exemption provision89 discriminated against Sikkimese women who may have had their names registered in the Register of Sikkim subjects, married non-Sikkimese on or after 1st April, 2008, and excluded them from the benefit. This court held such discrimination to be violative of equality under Article 14 of the Constitution of India. In Independent Thought (supra), this court invalidated as discriminatory a provision90 which permitted sex between a man, and a young woman married to him, above the age of 15 years. The resultant classification was that sex with any woman below 18 years, irrespective of consent was defined as rape.91 86 The court had cited State (Through CBI/New Delhi) v. S.J. Choudhary (1996) 2 SCC 428; SIL Import, USA v. Exim Aides Silk Exporter [1999] 2 SCR 958 and BR Enterprises v. State of U.P. [1999] 2 SCR 1111 87 [1999] 1 SCR 669 88 (2023) 10 SCR 289 89 [Section 10(26AAA) of the I.T. Act, 1961] 90 [Exception 2 to Section 375, IPC, 1860] 91 The reasoning of the court was that “a girl can legally consent to have sex only after she attains the age of 18 years. She can legally enter into marriage only after attaining the age of 18 years. When a girl gets married below the age of 18 years, the persons who contract such a marriage or abet in contracting such child marriage, commit a criminal offence and are liable for punishment under the PCMA. In view of this position there is no rationale for fixing the age at 15 years. This age has no nexus with the object sought to be achieved viz., maintaining the sanctity of marriage because by law such a marriage is not legal. It may be true that this marriage is voidable and not void ab initio (except in the State of Karnataka) but the fact remains that if the girl has got married before the age of 18 years, she has right to get her marriage annulled. Irrespective of the fact that the right of the girl child to get her marriage annulled, it is indisputable that a criminal offence has been committed and other than the girl child, all other persons including her husband, and those persons who were involved in getting her married are guilty of having committed a criminal act. In my opinion, when the State on the one hand, has, by legislation, laid down that abetting child marriage is a criminal offence, it cannot, on the other hand defend this classification of girls below 18 years on the ground of sanctity of marriage because such classification has no nexus with the object sought to be achieved. Therefore, also Exception 2 in so far as it relates to girls below 18 years is discriminatory and violative of Article 14 of the Constitution.
5192. The principle of purposive interpretation was relied upon by the petitioners to urge that a gender neutral interpretation or use of words which include non- heterosexual couples should be resorted to. This court, in S.R. Chaudhuri v. State of Punjab & Ors92 remarked that “The words used may be general in terms but, their full import and true meaning, has to be appreciated considering the true context in which the same are used and the purpose which they seek to achieve.”
93. Ahron Barrack93 in his treatise94 stated as follows:
“Purposive interpretation is based on three components: language, purpose, and discretion. Language shapes the range of semantic possibilities within which the interpreter acts as a linguist. Once the interpreter defines the range, he or she chooses the legal meaning of the text from among the (express or implied) semantic possibilities. The semantic component thus sets the limits of interpretation by restricting the interpreter to a legal meaning that the text can bear in its (public or private) language.”
94. This court has also held that there can be occasions when words may be read in a particular manner, if it is sure that the draftsman would have wished it to be so, given the nature of the expressions, and, at the same time, indicated the limits for that principle, while quoting from the treatise Principles of Statutory Interpretation by G.P. Singh95, in Ebix Singapore Private Limited and Ors. v. Committee of Creditors of Educomp Solutions Ltd & Ors.96:
“A departure from the Rule of literal construction may be legitimate so as to avoid any part of the statute becoming meaningless. Words may also be read to give effect to the intention of the Legislature which is apparent from the Act read as a whole. Application of the mischief Rule or purposive construction may also enable reading of words by implication when there is no doubt about the purpose which the Parliament intended to achieve. But before any words are read to repair an omission in the Act, it should be possible to state with certainty that these or similar words would have been 92 (2001) 7 SCC 126, 93 the former President of the Israeli Supreme Court 94 Aharan Barak-Purposive Interpretation in Law (quoted in Shailesh Dhairyawan v. Mohan Balkrishna Lulla ([2015] 12 SCR 70) 95 Lexis Nexis, First Edition (2015) 96 [2021] 14 SCR 321 52 inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law.” Other decisions too have endorsed this line of reasoning.97
95. The objects of a statute, acquire primacy while interpreting its provisions, if the need so arises. Therefore, in interpretation of any statute or provision, this court, long ago, in Workmen of Dimakuchi Estate v. Management of Dimakuchi Tea Estate98 underlined that where there are doubts about the meaning of a provision, they “are to be understood in the sense in which they best harmonise with the subject of the enactment” and that popular meanings, or strict grammatical import, may yield to “the subject or the occasion on which they are used, and the object to be attained”. This object-based interpretation was adopted in several decisions.99
96. This court emphasised in Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. & Ors.100 that:
“Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual.” 97 In M. Nizamuden v. Chemplast Sanmar Ltd & Ors ((2010) 4 SCC 240), it was observed: “Purposive construction has often been employed to avoid a lacuna and to suppress the mischief and advance the remedy. It is again a settled rule that if the language used is capable of bearing more than one construction and if construction is employed that results in absurdity or anomaly, such construction has to be rejected and preference should be given to such a construction that brings it into harmony with its purpose and avoids absurdity or anomaly as it may always be presumed that while employing a particular language in the provision absurdity or anomaly was never intended.” Girodhar G. Yadalam v. Commissioner of Wealth Tax & Ors [2015] 15 SCR 543; K.H. Nazar v. Mathew K. Jacob, (2020) 14 SCC 126, which states that in interpreting a statute “the problem or mischief that the statute was designed to remedy should first be identified and then a construction that suppresses the problem and advances the remedy should be adopted.” Again, in New India Assurance Co. Ltd. v. Nusli Neville Wadia [2007] 13 SCR 598, this court explained purposive interpretation to mean one which enables “a superior court to interpret a statute in a reasonable manner, the court must place itself in the chair of a reasonable legislator/author. So done, the rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act is fulfilled”.98
1958 SCR 1156 99 To name some, in Bipinchandra Parshottamdas Patel v. State of Gujarat [2003 (4) SCC 642], a provision enabling the suspension of an elected official of a municipality, under detention during trial, was held to include detention during investigation, having regard to the object, or the mischief sought to be addressed by the law.” 100 1987 (2) SCR 1 53
97. In Bank of India v. Vijay Transport & Ors.101, the court dealt with the plea that a literal interpretation is not always the only interpretation of a provision in a statute and that the court has to look at the setting in which the words are used and the circumstances in which the law came to be passed to decide whether there is something implicit behind the words used which control the literal meaning of such words.102
98. The five-judge decision of this court in Central Bank of India v. Ravindra103 held:
“ […] Ordinarily, a word or expression used at several places in one enactment should be assigned the same meaning so as to avoid "a head-on clash" between two meanings assigned to the same word or expression occurring at two places in the same enactment. It should not be lightly assumed that "Parliament had given with one hand what it took away with the other" (see Principles of Statutory Interpretation, Justice G.P. Singh, 7th Edn. 1999, p. 113). That construction is to be rejected which will introduce uncertainty, friction or confusion into the working of the system (ibid, p. 119). While embarking upon interpretation of words and expressions used in a statute it is possible to find a situation when the same word or expression may have somewhat different meaning at different places depending on the subject or context. This is however an exception which can be resorted to only in the event of repugnancy in the subject or context being spelled out. It has been the consistent view of the Supreme Court that when the legislature used same word or expression in different parts of the same section or statute, there is a presumption that the word is used in the same sense throughout (ibid, p. 263). More correct statement of the rule is, as held by the House of Lords in Farrell v. Alexander All ER at p. 736b, "where the draftsman uses the same word or phrase in similar contexts, he must be presumed to intend it in each place to bear the same meaning". The court having accepted invitation to embark upon interpretative expedition shall identify on its radar the contextual use of the word or expression and then determine its direction avoiding collision with icebergs of inconsistency and repugnancy.”
99. The objects that a statute seeks to achieve, are to thus be gleaned not merely from a few expressions, in the statement of objects and reasons (for the statute) 101 [ 1988] 1 SCR 961 102 Relied on R.L. Arora v. State of Uttar Pradesh {(1964) 6 SCR 784} “It may be that in interpreting the words of the provision of a statute, the setting in which such words are placed may be taken into consideration, but that does not mean that even though the words which are to be interpreted convey a clear meaning, still a different interpretation or meaning should be given to them because of the setting. In other words, while the setting of the words may sometimes be necessary for the interpretation of the words of the statute, but that has not been ruled by this Court to be the only and the surest method of interpretation.” 103 (2001) Supp (4) SCR 323 54 but also from the enacted provisions. The provisions and the objects of the SMA (as discussed in the earlier section on discrimination) clearly point to the circumstance that Parliament intended only one kind of couples, i.e., heterosexual couples belonging to different faiths, to be given the facility of a civil marriage.
100. The petitioners’ argued that the purpose of the SMA was to provide a framework for civil marriages not based on personal law includes same-sex marriages. Yet, structurally, Section 4 (conditions relating to solemnization of special marriages), contemplates marriages between a man and a woman. To read SMA in any other manner would be contrary to established principles of statutory interpretation as discussed in preceding paragraphs. It is also not permissible for the court to 'read up’ and substitute the words “any two persons” to refer to a marriage between non-heterosexual couples.
101. Gender neutral interpretation, much like many seemingly progressive aspirations, may not really be equitable at times and can result in women being exposed to unintended vulnerability, especially when genuine attempts are made to achieve a balance, in a social order that traditionally was tipped in favour of cis-heterosexual men. The purpose of terms like ‘wife’, ‘husband,’ ‘man,’ and ‘woman’ in marriage laws (and other laws on sexual violence and harassment as well) is to protect a socially marginalised demographic of individuals. For instance, women facing violence by their partner have a right to seek recourse under the Domestic Violence Act, which assures- and is meant to assure that they (the victims) are safeguarded and provided relief against such injustice. In fact, provisions in SMA, for alimony, and maintenance (Section 36 and 37) confer rights to women; likewise certain grounds of divorce (conviction of husband for bigamy, rape) entitle the wife additional grounds (Section 27) to seek divorce. Other provisions such as: Section 2 (b) read with Part I (for a male) and Part II (for a female) enact separate degrees of prohibited relationships; Section 4 (c), uses the terms “husband” and “wife”; Section 12, 15, 22, 23, 27(1), Section 31(1) (iiia) and (2) (special provision for jurisdiction in case of 55 proceeding for the wife), Sections 36 and 37 provide for maintenance and alimony for the wife), Section 44 (Punishment of bigamy). The general pattern of these provisions – including the specific provisions, enabling or entitling women, certain benefits and the effect of Sections 19, 20, 21 and 21A of SMA is that even if for arguments’ sake, it were accepted that Section 4 of SMA could be read in gender neutral terms, the interplay of other provisions- which could apply to such non-heterosexual couples in such cases, would lead to anomalous results, rendering the SMA unworkable.
102. Furthermore, if provisions of SMA are to be construed as gender neutral (such as persons or spouses, in substitution of wife and husband) as the petitioners propose, it would be possible for a cis-woman’s husband to file a case or create a narrative to manipulate the situation. Gender neutral interpretation of existing laws, therefore, would complicate an already exhausting path to justice for women and leave room for the perpetrator to victimise them. A law is not merely meant to look good on paper; but is an effective tool to remedy a perceived injustice, addressed after due evaluation about its necessity. A law which was consciously created and fought for, by women cannot, therefore, by an interpretive sleight be diluted.
103. In fact, it would do well to remind ourselves what this court had stated, in Delhi Transport Corporation v. DTC Mazdoor Congress (hereafter, “Delhi Transport Corporation”)104:
“when the provision is cast in a definite and unambiguous language and its intention is clear, it is not permissible either to mend or bend it even if such recasting is in accord with good reason and conscience. In such circumstances, it is not possible for the court to remake the statute. Its only duty is to strike it down and leave it to the legislature if it so desires, to amend it.” Similarly, in Cellular Operators Association of India v. Telecom Regulatory Authority of India105, the court applied the rule of Delhi Transport Corporation 104 (1990) Supp. 1 SCR 142 105 2016 (9) SCR 1 56 (supra) and held that the construction suggested would lead the court “to add something to the provision which does not exist, which would be nothing short of the court itself legislating” and therefore, impermissible.106
104. Lastly, there is no known rule by which a word or group of words, in one provision, can have two different meanings. The effect of the petitioner’s argument would be to say that generally, provisions of SMA should be read in a gender neutral manner (spouse for wife and husband; persons instead of the male and female, etc). Whilst it could in theory be possible to read such provisions in the manner suggested, their impact on specific provisions such as the separate lists for wives and husbands for purposes of age, determining prohibited degrees of relationships, and remedies such as divorce and maintenance, leads to unworkable results. Most importantly, the court, in its anxiety to grant relief, would be ignoring provisions that deal with and refer to personal laws of succession that are, Sections 19, 20, 21 and 21A. This court cannot look at a text containing words with two optional meanings in the same provision.
105. Likewise, with regard to the FMA, the petitioners’ sought that certain conditions and provisions be read in gender neutral terms, to enable same-sex marriage. FMA too, is a secular legislation wherein Section 4107 states that a marriage between “parties” may be solemnized under this Act, provided that at least one of the two parties is a citizen of India. However, “bride” and “bridegroom” are used in Section 4 (relating to the age of the parties at time of solemnization), the Third and Fourth Schedule (which prescribe the declarations by both parties and certification of marriage). In our view, the conditions for such 106 Likewise, B.R. Kapur v. State of Tamil Nadu 2001 (3) Suppl. SCR 191 - a Constitution Bench ruling of this court, also held that interpretations which read in words, were impermissible.
1074. Conditions relating to solemnization of foreign marriages. ―A marriage between parties one of whom at least is a citizen of India may be solemnized under this Act by or before a Marriage Officer in a foreign country, if, at the time of the marriage, the following conditions are fulfilled, namely: -
(a) neither party has a spouse living;
(b) neither party is an idiot or a lunatic;
(c) the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years;
(d) the parties are not within the degrees of prohibited relationship:
Provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship.57
marriages, under Section 4(1)(c) of FMA specifically require the parties to be a ‘bride’ and a ‘bridegroom’, i.e., it is gendered in nature. Furthermore, the terms “husband” and “wife” are used in Section 13 and 18 in relation to the solemnisation of marriage and provisions where matrimonial reliefs (as under the SMA) are available under the FMA. The Petitioners’ prayer therefore, that this Court read the references to “husband” or “wife” or “spouse” with “or spouse” in the same manner as discussed in relation to the SMA above, is unsustainable.
106. As far as the petitioners’ reliance on Ghaidan108; Fourie109; and precedents from other foreign jurisdictions are concerned, we agree with the reasoning given by Chief Justice that our courts should exercise caution when relying on the law in other jurisdictions. We should be mindful of distinct contextual framework within which those decisions have been given.
107. As discussed earlier, the words of the statutes have to be read, taking into account the fabric of concepts, rights, obligations and remedies which it creates. Removing or decontextualizing provisions, from their setting and “purposively” construing some of them cannot be resorted to, even in the case of SMA as well as FMA.
VI. Discriminatory impact on queer couples
108. I do not wish to revisit the history of how this court evolved the test of considering the effect or impact of laws on Fundamental Rights; it would be appropriate to say that the object-based test favored and applied in A.K. Gopalan110 was discarded decisively by the 11 judge Bench in R.C. Cooper (supra). The true test was spelt out in the following manner:
“it is not the object of the authority making the law impairing the right of a citizen, nor the form of action that determines the protection he can claim; it is the effect of the law and of the action upon the right which attract the jurisdiction of the Court to grant relief. If this be the true view, and we think it is, in determining the impact of State action upon 108 Ghaidan v Godin – Mendoza, (2004) UKHL 30.109
Minister of Home Affairs v. Fourie & Anr, [(CCT 60/04) [2005] ZACC 19; 2006 (1) SA 524 (CC)] 110 AK Gopalan v. State of Madras, (1950) 1 SCR 88 58 constitutional guarantees which are fundamental, it follows that the extent of protection against impairment of a fundamental right is determined not by the object of the Legislature nor by the form of the action, but by its direct operation upon the individual's rights.” This line of reasoning was applied and commended in Maneka Gandhi (supra); it is now an intrinsic part of the constitutional lore.
109. In recent times, this court has applied, in relation to claims of discrimination, the test of indirect discrimination. This dimension was explained in Lt. Col Nitisha v. Union of India111:
“First, the doctrine of indirect discrimination is founded on the compelling insight that discrimination can often be a function, not of conscious design or malicious intent, but unconscious/implicit biases or an inability to recognize how existing structures/institutions, and ways of doing things, have the consequence of freezing an unjust status quo. In order to achieve substantive equality prescribed under the Constitution, indirect discrimination, even sans discriminatory intent, must be prohibited. In Navtej Johar (supra) too, earlier, the concurring judgment of the present Chief Justice, had relied on the directive of European Parliament which defines indirect discriminatory impact as:
"where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary."
Interestingly, an earlier decision of this court, had relied on the concept and application of indirect discrimination test in Om Kumar and Ors v. Union of India112 - in the context of discussing the principle of proportionality:
"If indirect discrimination were established, the Government would have to show 'very weighty reasons' by way of objective justification, bearing in mind that derogations from fundamental rights must be construed strictly and in accordance with the principle of proportionality"111
2021 (4) SCR 633 112 2000 Supp (4) SCR693 59 Later judgments (S.K. Nausad Rahaman & Ors. v. Union of India (UOI) & Ors113and Ravinder Kumar Dhariwal v. Union of India114) also applied the indirect discrimination test to judge the validity of the measure in question.
110. The common feature of the “effect of the law and of the action upon the right” in R.C. Cooper (supra) and the decisions which applied the indirect discrimination lens, is that the objects (of the legislation or the policy involved) are irrelevant. It is their impact, or the effect, on the individual, which is the focus of the court’s inquiry. In one sense, the development of the indirect discrimination test, is a culmination, or fruition of the methods which this court adopted, in judging the discriminatory impact of any law or measure, on an individual.
111. This court in the previous sections of this judgment, has discussed and concluded how the claim for reading a fundamental right to marry, into the Constitution, cannot be granted. However, the court cannot be oblivious of the various intersections which the existing law and regulations impact to queer couples.
112. The constitution exists, and speaks for all, not the many or some. The felt indignities of persons belonging to the LGBTQIA+ community need no proof, of the forensic kind; it does have to meet a quantifiable threshold, this court has outlined them in Navtej Johar (supra). The refusal to acknowledge choice, by society, is because it is statedly based on long tradition (dating back to the times when the constitution did not exist). In such cases, the issue is does the state’s silence come in the way of this court recognizing whether the petitioners have been denied the right to choose their partner?
113. It is important to recognize, that while the state ipso facto may have no role in the choice of two free willed individuals to marry, its characterizing marriage for various collateral and intersectional purposes, as a permanent and binding 113 2022 (12) SCC 1 114 2021 (13) SCR 823 60 legal relationship, recognized as such between heterosexual couples only (and no others) impacts queer couples adversely. The intention of the state, in framing the regulations or laws, is to confer on benefits to families, or individuals, who are married. This has the result of adversely impacting to exclude queer couples. By recognizing heterosexual couples’ unions and cohabitation as marriages in various laws and regulations such as: in employment (nominations in pension, provident fund, gratuity, life and personal accident insurance policies); for credit (particularly joint loans to both spouses, based on their total earning capacity); for purposes of receiving compensation in the event of fatal accidents, to name some such instances, and not providing for non-heterosexual couples such recognition, results in their exclusion.
114. The individual earned benefits (by each partner or both collectively), which would be available to family members (such as employee state insurance benefits, in the event of injury of the earning partner, provident fund, compensation, medical benefits, insurance benefits, in the event of death of such earning partner) are examples of what the injured or deceased partner by dint of her or his work, becomes entitled to, or the members of her family become entitled to. The denial of these benefits and inability of the earning partner in a queer relationship, therefore has an adverse discriminatory impact. The state may not intend the discrimination, or exclusion in the conferment of such benefits or social welfare measures. Yet, the framework of such policies or regulations, expressed in favour of those in matrimonial relationships, results in denial of entitlements/benefits, despite the professional abilities and contributions which such individuals might to society.
115. The objective of many of these laws or schemes is to confer or provide entitlements based on individual earning and contribution. For example, provident fund is payable due to the employee’s personal contribution and their status as an employee, directly flowing from the functions discharged. Similarly, the objective of entitlement of benefits under the Employee State Insurance Act, 61 and other such insurance related schemes or welfare measures (such as the Workman’s Compensation Act), flow from the individual status, work, and effort of the concerned employee. Major part of these benefits, or all of them, flow in the event of certain eventualities such as fatal accident, or death. The design of these statutes and schemes, is to enable both the concerned subscriber or employee (in the event of infirmity or termination of employment) to receive them, or in an unforeseen event such as death, for his dependents to receive them. The restrictive way in which ‘dependent’ or ‘nominee(s)’ are defined (‘spouse’, or members of the family in a heteronormative manner) exclude their enjoyment to the intended beneficiary.
116. This deprivation has to be addressed. That these can be magnified, can be illustrated by a few examples. For instance, a queer couple might live together as spouses (without legal recognition)- even for two decades. If one of them passes away in a motor vehicle accident, the surviving partner would not only be unable to get any share of the deceased partner’s estate, but also any portion of the compensation. In case the union was not with approval of their respective families, who might have ostracised or broken relationship with them, the result would be injustice, because the surviving spouse, who shared life and cared for the deceased partner, especially during hard times, would be completely excluded from enjoying any benefits - all of which would go to the family members of the deceased (who may have even boycotted them). The same result would occur, in the event of death of one partner; family pension and death benefits would be denied to the queer partner. This injustice and inequity results in discrimination, unless remedial action is taken by the state and central governments.
117. It is relevant to record a note of caution at this juncture. While the right to marry or have a legally recognised marriage is only statutory, the right to cohabit and live in a relationship in the privacy of one’s home is fundamental, and enjoyed by all. This is not to say that the latter, is unqualified or without restriction. Rather, that the latter, is a right afforded to all, irrespective of the State's recognition of 62 the relationship or status, as in the case of ‘married’ couples. The discriminatory impact recognised in the above paragraphs, however, is to highlight the effect of a legislative vacuum – specifically on long term queer couples, who do not have the avenue of marriage, to entitle them to earned benefits. Could this same logic then be extended to heterosexual couples that choose to not get married, despite having the avenue? With respect, this would require further consideration by the State, and was an aspect that was neither argued, nor were we called upon to decide, in the present petitions. Therefore, it is pointed out that State must remain cognizant of such an unwitting consequence of creating two parallel frameworks, for live-in or domestic partnerships, and marriages, and the confusion or anomalies this may cause to gendered legal frameworks (as they stand today) – while trying to remedy or mitigate the discrimination faced by queer couples.
118. Addressing all these aspects and concerns means considering a range of policy choices, involving multiplicity of legislative architecture governing the regulations, guided by diverse interests and concerns - many of them possibly coalescing. On 03.05.2023, during the course of hearing, the learned Solicitor General, upon instructions, had expressed the Union’s position that a High- powered committee headed by the Union Cabinet Secretary would be formed to undertake a comprehensive examination to consider such impacts, and make necessary recommendations in that regard.
VII. Transgender persons in heterosexual persons can marry under existing law
119. We are in agreement with the Part (xi) of the learned Chief Justice’s opinion which contains the discussion on the right of transgender persons to marry. We are also in agreement with the discussion relating to gender identity [i.e., sex and gender are not the same, and that there are different people whose gender does not match with that assigned at birth, including transgender men and women, intersex persons, other queer gendered persons, and persons with socio-cultural identities 63 such as hijras] as well as the right against discrimination under the Transgender Persons Act 2019. Similarly, discussion on the provisions of the Transgender Persons Act, 2019 and enumeration of various provisions, remedies it provides, and harmonious construction of its provisions with other enactments, do not need any separate comment. Consequently, we agree with the conclusion [(G(m)] that transgender persons in heterosexual relations have the right to marry under existing laws, including in personal laws regulating marriage. The court’s affirmation, of the HC judgment in Arun Kumar v. Inspector General of Registration115 is based upon a correct analysis.
VIII. Issue of joint adoption by queer couples
120. Some of the petitioners have challenged Regulation 5(3) of the 2020 CARA Regulations. By Section 57(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereafter ‘JJ Act’), consent of both the spouses for adoption is necessary (“shall be required”). By Section 57(5), the authority116 is enabled to frame any other criteria. CARA notified regulations in furtherance of Section 57(3) which inter alia mandates as a prerequisite that the prospective adopting couple should have been in a stable marital relationship for at least 2 years 117. The petitioners argued that these regulations relating to adoption were ultra vires the parent enactment – the JJ Act, and arbitrary for classifying couples on the basis of marital status, for the purpose of joint adoption. We have perused the reasoning and conclusion by the learned Chief Justice on this aspect, and are unable to concur.
115(2019) Online SCC Madras 8779 116 CARA (Central Adoption Resource Agency) formed under Section 68 117
5. Eligibility criteria for prospective adoptive parents.― (1)The prospective adoptive parents shall be physically, mentally, emotionally and financially capable, they shall not have any life threatening medical condition and they should not have been convicted in criminal act of any nature or accused in any case of child rights violation.
(2) Any prospective adoptive parent, irrespective of their marital status and whether or not they have biological son or daughter, can adopt a child subject to the following, namely:― (a) the consent of both the spouses for the adoption shall be required, in case of a married couple; (b) a single female can adopt a child of any gender; (c) a single male shall not be eligible to adopt a girl child.
(3) No child shall be given in adoption to a couple unless they have at least two years of stable marital relationship except in the cases of relative or step-parent adoption.
64121. The interpretation placed on Section 57(2) of the JJ Act by the learned Chief Justice, is that it contemplates (joint) adoption by both married and unmarried couples, but the condition requiring both spouses to consent applies only to married couples. Therefore, while the JJ Act is wider in its scope, the CARA Regulation 5(3) [in furtherance of Section 57(5) which delegates power to prescribe any other criteria] stipulating a ‘stable marital relationship’ exceeds the power granted by the parent Act, and is ultra vires the express provisions and legislative policy of the JJ Act. Our disagreement with this characterization is laid out in Part A below. Thereafter, the learned Chief Justice has read down offending part ‘marital’ from Regulation 5(3), and held that the requirement of ‘consent’ embodied in Regulation 5(2)(a) would be equally applicable on both married and unmarried couples. We are of the firm opinion that the exercise of reading down itself, is unsustainable [See part B below] and hence, this consequence though favourable, cannot apply. Our reasoning in relation to the aspect of adoption by queer couples, and the indirect discrimination faced, is elaborated in Part C. A. Not a case of delegated legislation being ultra vires the parent Act
122. With respect, we disagree with the interpretation of Section 57(2) of the JJ Act itself. A reading of the provision as a whole, makes it amply clear that it intends joint adoption only to married couples. While the word “couple” is not preceded by ‘married’, the use of “spouse” later in the sentence, rules out any other interpretation. The principle of noscitur a sociis (meaning of a word should be known from its accompanying or associating words) is squarely applicable; a provision is to be seen as a whole, wherein words are to be read in the context of accompanying or associating words. In K. Bhagirathi G. Shenoy and Ors. v. K.P. Ballakuraya & Anr.118, it was observed:
"It is not a sound principle in interpretation of statutes to lay emphasis on one word disjuncted from its preceding and succeeding words. A word in a 118 [1999] 2 SCR 438 65 statutory provision is to be read in collocation with its companion words. The pristine principle based on the maxim noscitur a sociis (meaning of a word should be known from its accompanying or associating words) has much relevance in understanding the import of words in a statutory provision.” Furthermore, such an interpretation – of construing a part of one provision as operating to one set of people, and not others, is simply not known to law.
123. To read Section 57(2) as enabling both married and unmarried couples to adopt, but that the statutory provision contemplates a restriction or requirement of ‘consent’ only on the former kind of couple is not based on any known principle of interpretation. There is a strong legislative purpose in the requirement of obtaining consent of the spouse, which is rooted in the best interest of the child; for their welfare, and security. The parent Act, and delegated legislation, both are clear that a prospective adoptive parent can be a single person (whether unmarried, widower, etc.) and on them, there exists no restriction other than on a single male being barred from adopting a girl child. The restriction of ‘consent’ of partner, applies only in the case of a couple. This is because the child will enter into a family unit – consisting of two parents, as a result of the adoption and will in reality, enjoy the home that is made of both partners. Acceptance, therefore, of the other partner, is imperative; it would not be in the best interest of the child if one of the partners was unwilling to take on the responsibility. The only other legislative model is Section 7 and 8 of the Hindu Adoption and Maintenance Act, 1956 which mandates consent of both spouses (which much like other personal laws, uses the gendered language of “wife” and “husband”).
124. Therefore, given that we differ on the starting point itself – that section 57(2) of the JJ Act permits joint adoption by both married and unmarried couples (as held by the learned Chief Justice) – we are of the considered opinion that is not a case of delegated legislation being ultra vires the parent Act.
125. The legislative choice, of limiting joint adoption only to married couples needs to be understood in the broader context of the JJ Act, and its purpose – which is the best interest of the child are paramount. Legal benefits and 66 entitlements, flow either from/in relation to the individual adopting (when a single person adopts), or the married couple adopting as a unit. In the case of bereavement, of such single parent, custody of the child may be taken by a relative in the former, whereas continued by the surviving spouse, in the latter. But consider, that in the case of a married couple – there is a breakdown of marriage, or simply abandonment/neglect of one partner and the child, by the other. There are protections in the law, as they stand today, that enable such deserted, or neglected spouse, to receive as a matter of statutory right – maintenance, and access to other protections. Undoubtedly, the DV Act offers this protection even to those in an unmarried live-in relationship, but consider a situation that does not involve domestic violence, and is plain and simple a case of neglect, or worse, desertion. It is arguable that both partners, are equally responsible for the child after the factum of adoption; however – it begs the question, how can one enforce the protection that is due to this child?
126. The JJ Act merely enables adoption, but for all other consequences (i.e., relating to the rights of a child qua their parents, and in turn obligations of a parent towards the said child) reference has to be made to prevailing law (law relating to marriage and divorce, maintenance, succession, guardianship, custody, etc.). When a single person adopts as an individual, their capabilities are assessed as per Section 57(1) [and Regulation 5(1)], and the responsibility of that child – falls squarely on this individual. If that person enters into a relationship, whether it later succeeds, or fails, is immaterial – the responsibility of the child remains squarely on the individual (until they are married, and the partner legally adopts the child). When a couple adopts, they are jointly assessed, and in law, the responsibility falls on both parents. If one parent was to abandon the relationship, and the other parent is unable to maintain themselves or the child by themselves– recourse lies in other statutory provisions which enable remedy to be sought. To read the law in the manner adopted by the learned Chief Justice, with all due respect, would have disastrous outcomes, because the ecosystem of law as it 67 exists, would be unable to guarantee protection to the said child in the case of breakdown of an unmarried couple, adopting jointly. This, therefore, would not be in the best interest of the child.
B. Not a case for reading down or other interpretive construction
127. Counsel relied on the case of X v. Principal Secretary (supra) where this court read down ‘married woman’ to just ‘woman’ for the purpose of interpretating the MTPA Act, to argue that a similar interpretation be adopted for the law relating to adoption. In our considered opinion, that case was on a different footing altogether – it related to an individual woman’s right to choice and privacy, affecting her bodily autonomy. Given the fundamental right that each childbearing individual has, and the objective of the Act, the classification on the basis of marital status, was wholly arbitrary. The JJ Act and its regulations are on a different footing. Here, the object of the Act and guiding principle, is the best interest of the child (and not to enable adoption for all).
128. It is agreeable that all marriages may not provide a stable home, and that a couple tied together in marriage are not a ‘morally superior choice’, or per se make better parents. Undoubtedly, what children require is a safe space, love, care, and commitment – which is also possible by an individual by themselves, or a couple– married or unmarried. There is no formula for a guaranteed stable household. Principally, these are all conclusions we do not differ with. As a society, and in the law, we have come a long way from the limited conception of a nuclear family with gendered roles, and privileging this conception of family over other ‘atypical’ families. However, the fact that Parliament has made the legislative choice of including only ‘married’ couples for joint adoption (i.e., where two parents are legally responsible), arises from the reality of all other laws wherein protections and entitlements, flow from the institution of marriage. To read down ‘marital’ status as proposed, may have deleterious impacts, that only 68 the legislature and executive, could remedy – making this, much like the discussion on interpretation of SMA, an outcome that cannot be achieved by the judicial pen. Having said this, however, there is a discriminatory impact on queer couples, perhaps most visible through this example of adoption and its regulation, that requires urgent state intervention (elaborated in Part C).
129. Furthermore, the previous analysis of SMA has led this Court to conclude that its provisions cannot be modified through any process of interpretation and that the expression “spouse” means husband and wife or a male and female as the case may be, on an overall reading of its various provisions. By Section 2(64) of the JJ Act, expressions not defined in that Act have the same meanings as defined in other enactments. The SMA is one example. Likewise, the other enacted laws with respect to adoption is the Hindu Adoption and Maintenance Act. That contains the expression “wife and husband”. In these circumstances, we are of the opinion that the manner in which Section 57(2) is cast, necessitating the existence of both spouse and their consent for adoption of a child. In such a relationship, Regulation 5(3) cannot be read down in the manner suggested by the learned Chief Justice.
130. Therefore, in our opinion, whilst the argument of the petitioners is merited on some counts, at the same time, the reading down of the provision as sought for would result in the anomalous outcome that heterosexual couples who live together, but choose not to marry, may adopt a child together and would now be indirect beneficiaries, without the legal protection that other statutes offer – making it unworkable (much like the discussion on SMA in Part V).
C. Discriminatory impact of adoption regulations on queer persons
131. Section 57(2) of that Act spells out the eligibility conditions of prospective adoptive parents. The petitioner’s argument was that the expression “marital” results in discrimination inasmuch as single parent can adopt – the only 69 prohibition being that a single man cannot adopt a girl child. Further, if a single man and/or a single woman choose to adopt separately as an individual, and live together, the resultant de facto parents would still have a choice of marrying each other – for the child in question to be legally the child of both parents. Or put differently, if a heterosexual couple wants to adopt a child jointly, they have the option of entering into a marriage, thereby making them eligible for joint adoption. However, in the absence of legal recognition of a queer couple union, they are left to adopt as individuals and the resultant de facto family would have no avenue for legal recognition. This iniquitous result too is an aspect which needs to be addressed as the impact here is not only on the queer couple (who have no avenue to seek legal recognition of their union) but also upon the children adopted by them (who have no say in the matter).
132. Furthermore, given the social reality that queer couples are having to adopt in law as individuals, but are residing together and for all purposes raising these children together – means that the State arguably has an even more urgent need to enable the full gamut of rights to such children, qua both parents. For instance, in an unforeseen circumstance of death of the partner who adopted the child as an individual, the child in question may well become the ward of such deceased’s relatives, who might (or might not) even be known to the child, whereas the surviving partner who has been a parent to the child for all purposes, is left a stranger in the law. Therefore, this is yet another consequence of the non- recognition of queer unions, that the State has to address and eliminate, by appropriate mitigating measures.
133. This is not to say that unmarried couples – whether queer or heterosexual– are not capable or suitable, to be adoptive parents. However, once the law permits, as it has done – adoption by both single individuals, the likelihood of their joining and co-habiting cannot be ruled out. In such event, de facto family unit can and do come about. The underlying assumption in the law as it exists, that such unmarried heterosexual or queer couples should not adopt needs to be closely 70 examined. Similarly, the need of such couples to have and raise a family in every sense of the term, has to be accommodated within the framework of the law, subject to the best interests of the child. The existing state of affairs which permits single individuals to adopt, and later to live as a couple in due exercise of their choice, in effect deprives the children of such relationships various legal and social benefits, which are otherwise available to children of a married couple. In other words, given the objective of Section 57 and other allied provisions of the JJ Act, which is beneficial for children, the State as parens patriae needs to explore every possibility and not rule out any policy or legislative choice to ensure that the maximum welfare and benefits reach the largest number of children in need of safe and secure homes with a promise for their fullest development. This aspect is extremely important given that a large number of children remain neglected, or orphaned.
134. It goes without saying that the welfare and the benefit of the children is paramount in every case, and the State has the duty to act as parens patriae. That our country has countless children who are orphaned or neglected, and in need of loving homes, is not lost on us – and is certainly a concern that the State is most acutely aware of. In these circumstances, it would be in the general interest of all children that such impact is removed at the earliest instance, after undertaking in- depth study and analysis of the various permutations and combinations that would arise in opening adoption more widely, without hampering the child’s rights. In its exercise of reframing the regulations or laws, it is reiterated that the State cannot, on any account, make regulations that are facially or indirectly discriminatory on the ground of sexual orientation. It would be entirely wrong, if the observations herein, are construed as saying that the State should hamper or interfere in queer persons who have in the past, or are seeking to adopt as individuals. These observations are to be construed to enable the state to consider all options, and implications, with the object of promoting the best welfare of children, especially whether joint adoption can be facilitated to such willing 71 couples, even while ensuring that the legal web of statutory protections and entitlements guaranteed to children, are operationalised for these children as well.
135. These observations are not meant to impede all possibilities and make all necessary policy and legislative changes, enabling children’s welfare. In other words, the possibility of queer couples adopting children, should be given equal concern and consideration having regard to the larger interest of the largest number of children and their development.
IX. Moulding relief
136. The breadth and amplitude of this court’s jurisdiction is incontestable. The constitution framers created this as a fundamental right in most emphatic terms. This jurisdiction enables the court to create and fashion remedies suited for the occasion, oftentimes unconstrained by previous decisions. Yet the breadth of this power is restrained by the awareness that it is in essence judicial. The court may feel the wisdom of a measure or norm that is lacking; nevertheless, its role is not to venture into functions which the constitution has authorised other departments and organs to discharge.
137. Social acceptance is an important aspect of the matrimonial relationship, but that is not the only reality; even in the exercise of choice by the parties to a marriage, there may be no acceptance at all, by members of their respective families; others too may shun them. Yet, their relationship has the benefit of the cover of the law, since the law would recognize their relationship, and afford protection, and extend benefits available to married persons. This however eludes those living in non-heterosexual unions, who have no such recognition in all those intersections with laws and regulations that protect individual and personal entitlements that are earned, welfare based, or compensatory. The impact, therefore, is discriminatory.
138. Does the existence of such discriminatory impacts, in these intersections with the state, and arising out of a variety of regulations and laws, impel this court 72 to fashion a remedy, such as a declaration, which enjoin legislative activity, or instruct the executive to act in a specified manner, i.e., achieving non- heterosexual couple marriage? This aspect cannot be viewed in isolation, but in the context of our constitution’s entrenchment of separation of powers, which according to Kesavananda Bharati (supra), Indira Gandhi119 and other judgments constitutes an essential feature of the Constitution. It is one thing for this court, to commend to the state, to eliminate the discriminatory impact of the intersections with laws and publicly administered policies and institutions, upon non-heterosexual couples, and entirely another, to indirectly hold that through a conflation of positive obligations cast on the State, that such individuals’ right to choice to cohabit and form abiding relationships, extends to the right (or some entitlement) to a legally recognised union that must be actualized by State policy/legislation.
139. The petitioners relied on three judgments specifically, to argue that this court could issue directions, to fill the legal lacunae: Common Cause (supra), Vishaka & Ors v. State of Rajasthan (hereafter, “Vishaka”)120 and NALSA (supra). We have briefly summarized why these were in a context different from the case before us.
140. In Common Cause (supra), the court elaborated on the theme of liberty under Article 21 of the Constitution and the façade of dignity inherent in it. The Court relied on Port of Bombay v. Dilipkumar Raghavendranath Nadkarni121, Maneka Gandhi (supra), and State of A.P. v. Challa Ramkrishna Reddy122. The court also relied on K.S. Puttaswamy (supra), NALSA (supra) and Shabnam v. Union of India123 to underline the intrinsic value of dignity and further stated that life is not confined to the integrity of physical body. Having said that, the Court 119 Indira Nehru Gandhi v. Raj Narain, (1975) Supp. SCC 1 120 1997 Supp 3 SCR 404 121 (1983) 1 SCR 828 122 (2000) 3 SCR 644 123 (2015) 8 SCC 289 73 formulated the right under Article 21 to include the right to die with dignity, of a dying or terminally ill person and approved the application of only passive euthanasia. The Court further went on to approve the idea of individual autonomy and self-determination, underlining the context expanded and built upon the directions which had been granted in the earlier judgment in Aruna Ramchandra Shanbaug v. Union of India (hereafter, “Aruna Shanbaug”)124. The Court was also influenced by the recommendations of the 241st Law Commission Report which had suggested incorporation of additional guidelines in addition to an elaboration of what had been spelt out in Aruna Shanbaug (supra). The Court rejected the argument that the previous ruling in Gian Kaur v. State of Punjab125 did not rule that passive euthanasia can only be given effect to through legislation and further that the Court could only issue guidelines.
141. The approach of Common Cause (supra) as can be seen from the varied opinions of the Judges forming the Bench was one of seeing the workability and the need to elaborate guidelines formulated in Aruna Shanbaug (supra). The Court had no occasion, really speaking, but to consider whether the directions given could not have been given. Furthermore, there were reports in the form of Law Commission recommendations which formed additional basis for the Court’s discretion and the final guidelines. An important aspect is that all judgments in Common Cause (supra) located the right to passive euthanasia premising upon the right to human dignity, autonomy and liberty under Article
21.
142. Vishaka (supra) was an instance where in every sense of the term, there was all round cooperation as is evident from the position taken by the Union of India which had expressly indicated that guidelines ought to be formulated by the Court. The trigger for these guidelines was the resolve that gender equality (manifested in Articles 14 and 15 of the Constitution as well as the right to 124 Aruna Ramchandra Shanbaug v. Union of India, (2011) 4 SCR 1057.
125(1996) 3 SCR 697 74 dignity) and the right to pursue one’s profession and employment [Article 19(1)(g)] needed some express recognition to ensure protection from sexual harassment in the workplace and to work with dignity, is a basic human right which needed to be addressed in the context of women at workplace. The Court took note of international conventions and instruments and also held that guidelines had to be formulated for enforcement of Fundamental Rights till a suitable law is made. The Court expressly indicated what kind of behaviour was sexual harassment (para 2 of the guidelines) and further that regulations had to be formulated for prohibited sexual harassment and providing for appropriate penalties at workplace. Other directions were that if the conduct amounted to an offence, the employer had to initiate appropriate action according to law and also ensure that the victims had to be given the option of transfer of their perpetrator or their own transfer. Furthermore, disciplinary action in terms of the rules was directed with a further requirement that necessary amendments were to be carried out. The Court then went on to request the State to consider adopting suitable measures indicating legislation to ensure that the guidelines in the order were employed by the Government.
143. Central to the idea of issuing directions or guidelines in Vishaka (supra) was the felt need to address a living concern - that of providing redressal against socially repressible conduct suffered by women in the course of employment. The Court stepped in, so to say, to regulate this behaviour in public places, which though not criminalized or outlawed (other than in the limited context of Section 354 IPC) actually tended towards criminal behaviour. The Court articulated the constitutional vision for bringing about gender parity and to that end, elimination of practices which tended to lower the dignity and worth of women through unacceptable behaviour. Guided by Article 15(3), the court stepped in, while limiting itself to regulate workplaces essential in the public field (State or State agencies). The Union of India was actively involved and in fact had given suggestions, at the time of formulation of these guidelines. At the same time, the 75 court realized its limitation and declared that such guidelines shall continue till appropriate laws are made. Existing service rules were in fact amended to accommodate these concerned, to the extent of incorporating the forums through which such grievance could be articulated. This later culminated in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 which applies not merely to public but all establishments.
144. In NALSA (supra), the Court again was confronted with an acute concern wherein the personhood of transgender persons itself, was not recognized. The court held that the intrinsic worth of every individual and the value of individuals to fully realise their rights, was a premise embedded in the Constitution. The Court sought to address hostile discriminatory practices, which included violence that transgender persons were subjected to routinely. Given all these circumstances, the Court located the right of those identifying themselves as transgender persons squarely under Article 21 of the Constitution. Any discriminatory practice against such persons, would violate their Article 15 right under the Constitution. The directions given by the Court were that such persons should be treated as third gender, where appropriate, and granted legal protection to their self-identified gender identity. Further, that the State and Central Government should seriously address problems faced by them by providing measures for medical care and facilities in hospitals, permitting them access to social welfare schemes for their betterment and take other measures. The court also constituted an expert committee to make an in-depth study of problems faced by transgender persons.
145. In the present case, however, the approach adopted in the above three cases would not be suitable. The court would have to fashion a parallel legal regime, comprising of defined entitlements and obligations. Furthermore, such framework containing obligations would cast responsibilities upon private citizens and not merely the State. The learned Chief Justice’s conclusions also do not point towards directions of the kind contemplated in Vishaka (supra).
76However, the outlining of a bouquet of rights and indication that there is a separate constitutional right to union enjoyed by queer couples, with the concomitant obligation on the State to accord recognition to such union, is what we take exception to.
X. Conclusion and directions
146. Marriage, in the ultimate context, is not defined merely by the elements, which delineate some of its attributes, and the differing importance to them, depending on times, such as permanence of a sexual partner; procreation and raising of children, stability to family, and recognition in the wider society. Some, or most of these elements may be absent in many relationships: there may be no procreative possibility due to choice, or otherwise; some marriages may have no wider context, such as absence of the larger family circle, due to several reasons, including alienation or estrangement; there may be no matrimonial home, in some marriage, because of constraints including spouses being located in different places; some marriages may be (by choice or otherwise) bereft of physical or sexual content. Yet, these marriages might be as successful, as fulfilling and complete as any other. The reason, in this author’s opinion, is that at its core, marriage has signified companionship, friendship, care and spiritual understanding a oneness, which transcends all other contents, and contexts. Thus, “home” is not a physical structure; it is rather the space where the two individuals exist, caring, breathing and thinking, living for each other. This is how traditionally it has been understood.
147. This feeling need not be unique to marriage; and in fact has come to be enjoyed by many without the cover of it (for e.g., those who are simply in committed cohabitational relationships). While many others, may only be able to experience such a feeling and way of life, if it were to have the legitimacy in society, akin to marriage. That law has the potential to play such a legitimising role, cannot be overstated. The feeling of exclusion that comes with this status 77 quo, is undoubtedly one which furthers the feeling of exclusion on a daily basis, in society for members of the queer community. However, having concluded that there exists no fundamental right to marry, or a right to claim a status for the relationship, through the medium of a law (or legal regime) and acknowledged the limitations on this court in moulding relief, this court must exercise restraint; it cannot enjoin a duty or obligation on the State to create a framework for civil union or registered partnership, or marriage, or abiding co-habitational relationship. Yet, it would be appropriate to note that everyone enjoys the right to choice, dignity, non-discrimination, and privacy. In a responsive and representative democracy which our country prides itself in being, such right to exercise choices should be given some status and shape. Of course, what that should be cannot be dictated by courts. At the same time, prolonged inactivity by legislatures and governments can result in injustices. Therefore, action in this regard, would go a long way in alleviating this feeling of exclusion that undoubtedly persists in the minds and experiences, of this community.
148. The resultant adverse impact suffered by the petitioners in relation to earned benefits [as elaborated in Part VI], solely because of the State’s choice to not recognise their (social) union or relationship, is one which results in their discrimination. This discriminatory impact – cannot be ignored, by the State; the State has a legitimate interest necessitating action. The form of action – whether it will be by enacting a new umbrella legislation, amendments to existing statutes, rules, and regulations that as of now, disentitle a same-sex partner from benefits accruing to a ‘spouse’ (or ‘family’ as defined in the heteronormative sense), etc.– are policy decisions left to the realm of the legislature and executive. However, the recognition that their non-inclusion in a legal framework which entitles them, and is a prerequisite eligibility criteria for myriad earned and accrued benefits, privileges, and opportunities has harsh and unjust discriminatory consequences, amounting to discrimination violating their fundamental right under Article 15 – is this court’s obligation, falling within its remit. The State has to take suitable 78 remedial action to mitigate the discriminatory impact experienced by the members of the queer community, in whatever form it deems fit after undertaking due and necessary consultation from all parties, especially all state governments and union territories, since their regulations and schemes too would have to be similarly examined and addressed.
149. 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 79 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. 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 definitionally, 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 80 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.
XI. Postscript
150. We have the benefit of the final draft by the learned Chief Justice, which contains Section E ‘responses to the opinion of the majority’ as well. Similarly, we have the benefit of perusing the separate opinion of Sanjay Kishan Kaul, J. While it would not be necessary to deal pointedly with the responses of my learned brothers, certain broad aspects are addressed in the following paragraphs, to clear the air or dispel any misunderstanding.
151. The learned Chief Justice in his response seeks to highlight that the Court has in the past exercised its powers under Article 32 in respect of enforcement of 81 various fundamental rights and cited certain precedents. A close look at each of them would reveal that in almost all cases, the Court enforced facets of personal liberty, or an aspect that was the subject of legislation. The allusion to cases dealing with subjects, particularly, incarceration of persons with mental disabilities (Sheela Barse126), the right to speedy trial (State of Punjab v. Ajaib Singh127), legal aid (Manubhai Pragji Vashi128 etc. are directly concerned with personal liberty. The reference to cases dealing with clean environment, is also a facet of Article 21. In fact, there are enacted laws in the field of environment protection. The allusion to the directions in PUCL v. UOI129 is pertinent; in that judgment, the Court in fact issued a series of directions to the State, operationalizing existing government schemes, and issuing consequential directions, to mitigate large-scale loss of grains, by directing that they be distributed/channelized by the State, into the PDS system. The other decision, State of H.P. v. Umed Ram Sharma 130 was a case where the High Court had directed speedy implementation and construction of a road which had been sanctioned by the State but had been left incomplete. It was held that direction was not to supervise the action but only to the apprise state of the inaction to bring about a sense of urgency. The court also observed importantly that it is primarily within the domain of the executive to determine the urgency and manner of priorities of the need of any law. This court by its judgment even observed that there was nothing wrong in such directions, since a sanction for the road had been obtained but there was tardy implementation of the same.
152. That certain fundamental rights have positive content, or obligation, is not disputed – in fact, in paragraph 57 this has been elaborated; exception was instead taken to the approach suggested by the learned Chief Justice, of tracing the right 126 1993 Supp (1) SCR 561 127 1995 (1) SCR 496 128 1995 Supp (2) SCR 733 129 W.P.(C)196/2001 130 1986 (1) SCR 251 82 to union from a conjoint reading of multiple Articles (clauses of Article 19, 25 and 21), as necessitating the creation of a legal status to the relationship (a result of the obligation to “accord recognition”) and enunciation of a bouquet of entitlements flowing from this [see paragraph 336(i)]. With respect, such a direction is in the nature of creating a legal status. Further, the discussion on the absence of law, and limited extent of positive rights under Article 19 and 25 in our opinion, was in fact to insist that rather than ordering liberties and enumerating every possible right or the way in which it is to be enjoyed, the content of fundamental rights are that they take up all the space, until restricted – which can be tested on the ground of its reasonableness, as per the limitations in Part III. This in no manner takes away from the previous jurisprudence of this Court where positive obligation under Article 21 has been expounded to locate several obligations upon the State.
153. This Court’s observations with respect to the learned Chief Justice’s reasoning centered around the enunciation of the bouquet of rights emanating from various provisions other than Article 21 [Article 19 and 25], and locating an obligation, has to be seen in the backdrop of the unanimous view of this Court, that the fundamental right to marry is not found within the Constitution. Therefore, it is our considered opinion that to create an overarching obligation upon the State to facilitate through policies the fuller enjoyment of rights under Article 19 and 25, is not rooted in any past decision, or jurisprudence. That queer couples have the right to exercise their choice, cohabit and live without disturbance – is incontestable. In the same vein, that they are owed protection against any threat or coercion to their life, is a positive obligation that binds the State– this is a natural corollary of their right under Article 21.
154. Consider in this context, also the nature of the relief sought, and the positive obligation fashioned. While there are innumerable judgments on the positive content of rights under Article 21, there are also countless judgments that insist upon the separation of powers, when it comes to matters of policy, and the 83 courts not being the appropriate forum for the adjudication of the same. The polycentric nature of the issue, is compelling.
155. Next, on the charge levelled that our conclusion on the challenge to the SMA (Part V of this judgment) and subsequently finding on the disparate or discriminatory impact faced by the queer community (Part VI) being contradictory – a small comment is called for. The section discussing the provisions of the SMA and the challenge to its validity, was based entirely upon whether it violated the Constitution on the ground of impermissible classification (under Article 14) – for which, the object of the Act (i.e., to facilitate marriage between inter-faith couples, wherein at the time ‘marriage’ or even a ‘couple’ only denoted heterosexual couples in light of same sex relations being criminalized), and its provisions, are relevant factors. Classification, involves differentiation; further, this court has discussed how ‘under classification’ per se does not warrant invalidation. In contrast, in the latter segment on discriminatory impact (Part VI), the issue that this court was considering, was not reasonable classification but the impact upon queer couples through neutral laws or regulations that they encounter in their everyday lives; the purpose of which, or even their substantive provisions, have nothing to do with matrimony. Its rather to confer other benefits – many of which are earned or accrued on account of individual skill and attainment. Yet the framing of some benefits or their intended beneficiary – wherever articulated in terms of entitlement to families or spouses, tends to exclude from its ambit, queer couples and their lived realities. When such queer couples are entitled to benefits wherever they fulfil other eligibility criteria; it is the disparate impact of these neutral laws in disbursal of entitlements or benefits, which is seen through the effect/impact lens. Therefore, the discussion on the constitutionality of the SMA is markedly different from the section on discriminatory impact in certain points for queer persons, as they have no avenue for marriage like heterosexual persons. In the latter, the impact of various laws were pointed as a starting point for the State to take remedial action.
84156. What is apparent, however, from our judicial differences and the manner in which we have articulated them – is that a certain question, of fair significance, arises: whether the absence of law or a regulatory framework, or the failure of the State to enact law, amounts to discrimination that is protected131 against under Article 15? With respect, this was perhaps neither argued, nor answered by us; our opinion is limited to testing the provisions of the SMA for violation of fundamental rights and noticing that there are various cracks through which the queer community slip through, in other neutral laws, policies and frameworks, due to the manner in which they privilege marital/spousal status (access to which, is not enabled/possible under existing law). Article 15(1) now, can be understood as permitting a classification for the purpose of fashioning policies. Can the state’s omission to create a classification, and further, its absence of a policy for a distinct group, which in the court’s opinion deserves favourable treatment, amount to violation of Article 15? There is no known jurisprudence or case law (yet) pointing to the absence of law being considered as discrimination as understood under Article 15.
157. The learned Chief Justice has dealt with in some detail on that section of our judgment, on adoption [Part VIII]. The underlying premise of his comments seek to highlight that the existing legal framework affords protection in the event of an unforeseen eventuality like abandonment, or sudden death of one partner. It is incontestable that Section 63 of the JJ Act, provides legal status to the child, in relation to their adoptive parent(s). However, that per se, is not adequate to address all concerns relating to the child. There would be difficulties faced by children, in claiming entitlements such as maintenance, in the absence of a general law. The example given by the learned Chief Justice illustrates this:
benefit under the Hindu Adoption and Maintenance Act (which is available only 131 Sexual orientation has been recognised under ‘sex’ in Article 15 by this court in Navtej Johar (supra) and does not merit elaboration, further than to say that any law or policy which directly, or indirectly, discriminates against a queer individual on the basis of their sexual orientation would fall foul of the Constitution, unless the law is a permissible classification.85
to Hindus, but accommodates both genders, unlike other laws). A suggestion of Section 125 of the Criminal Procedure Code would give rise to the same set of difficulties as the earlier discussion on SMA. In other words, to obviate the gendered language, an interpretive exercise of the kind ruled out for the interpretation of SMA, would be necessary. It is for these reasons, that we highlighted the need for the State to consider all aspects [para 133-135]. This court would reiterate that there is no basis for interpreting the term ‘couple’ under Section 57(2) of the JJ Act as including both married and unmarried couples, given the use of the word ‘spouse’ in the very same provision. It is pertinent to highlight that Section 2(61) of the JJ Act prescribes that expressions not defined, would have the same meaning as in other enactments.
158. As far as the learned Chief Justice’s comment with respect to this court not reading down ‘marital’ or striking down Regulation 5(3), the earlier discussion in Part VIII clarified that there was a conscious legislative policy while highlighting the interpretation of the term ‘spouse’. At the same time the court recognised the disparate, and even discriminatory impact, on children of individuals, who formed de facto families (with their unmarried partner). In our opinion, striking down the term ‘marital’ under Regulation 5(3) – would likely have unintended consequences, which cannot be comprehended by the court as it involves policy considerations. This is the reason for desisting from invalidating the provision but having left it to the State to take measures to remedy these impacts.
159. Lastly, a small note of caution is expressed in relation to a few conclusions of our learned brother Kaul, J. There can hardly be any dispute of the positive outcomes or the need for a broadly applicable non-discriminatory law (as elaborated by Kaul, J). However, the wisdom or unwisdom of such a law, the elements that go into its making are matters that are not before this Court to comment on. Nor can we anticipate what would be its content. We are of the opinion that it is not possible to hold that a positive obligation to enact such a law 86 exists. We, therefore, expressly place our disagreement with the reasoning of Kaul, J on this aspect.
160. The known canons of interpretation require the courts to take any statute and interpret its provisions keeping in mind their contextual setting. Likewise, the meaning of words have to be understood in the totality of provisions of the statute. Thus, wherever a word is used, the overall context of its location plays a role; sometimes, its meaning changes wherever the context is different. We have hence held that the expressions in the SMA [“wife” and “husband” or “male” and “female”] cannot, have a uniform meaning, because there is an intended gendered binary [e.g., male and female] in the specific enacting provisions. As far as inter se statutes are concerned, the inexpedience of a singular, gender neutral meaning is not a possible outcome, as explained previously. Therefore, it is our considered view, that there is no known interpretive tool enabling an exercise inter se and in between statutes, as held by Kaul, J.
161. Undoubtedly, constitutional values endure; they are not immutable. To the extent it is possible, the statutes may be interpreted in tune with such evolving values. Yet, statutes are neither ephemeral, nor their terms transient, and are meant to confer rights, duties, and obligations – and sometimes impose burdens and sanctions. This means that their contents have to be clear and capable of easy interpretation. The text of the statute therefore must be given meaning – any interpretive exercise must therefore begin with the text of the enacted law.
162. The gaps and inadequacies outlined earlier by this judgment result in wide- reaching impacts and concern crucial aspects of everyday life. Therefore, the respondents and all institutions should take note of the lived realities of persons across the range of gender identities and suitably prioritize their needs of social acceptance. There is also need for a move towards greater acceptance of personal choices and preferences, and an equal marking of our differences in all their varied hues.
87163. In various countries that have since legislated on same-sex marriage, the precursor to this regime was often the civil union route. Known by many names, the concept of civil union enjoys varying rights and entitlements in different jurisdictions. This was a legal relationship for unmarried, yet committed couples, who cohabited together and sought certain rights, and the protection of law. The rights that flowed were not identical in scope or extent of rights arising from marriage, but was still an avenue to provide certain limited, but enforceable rights. In the US, for instance this was rolled out by many state governments, when same-sex marriage was not legalized by the federal government. What began as an option for same sex couples, to attain financial and legal partnership (tax benefits, property rights, child adoption in some jurisdictions, inheritance, etc.) now remains on the statute books for some states, with which couples who do not want to enter the societal pressures or institution of marriage, are able to protect their rights. However, many advocates for LGBTQ rights have strongly opposed civil unions in other jurisdictions, as offering a ‘second class’ status, in the absence of the marriage route. Other alternatives available in some of these countries – the suitability of which have also been subject to criticism of varying degrees, but includes – domestic partnerships, cohabitation agreements, common law marriages, etc.
164. This court would be sorely mistaken if we presume what the queer community – in all its diversity, seeks and lay it out in a formulaic framework. Many may welcome civil unions as a pragmatic first step, while some may find it to be yet another inequitable solution to the feeling of exclusion that persists in society against this community, and one which simply repackages the stigmatization felt. Many may desire marriage as understood in the ‘traditional’ sense to escape their societal realities – a form of financial and social emancipation from opposing natal families, or diametrically opposite – to assimilate and gain more social acceptance in their natal families. Yet, others may, as a result of their experience reject altogether the institution of marriage and all 88 the social obligation and associations that come with it, but still want legal protection of their rights. Certainly, what the former group may want, does not hamper or hinder the latter, in any manner – for it is a choice that they seek. That the state should facilitate this choice for those who wish to exercise it, is an outcome that the community may agree upon. Yet, the modalities of how it should play out, what it will entail, etc. are facets that the State – here the legislature, and executive – needs to exercise its power in furtherance of. Now whether this will happen through proactive action of the State itself, or as a result of sustained public mobilization– is a reality that will play out on India’s democratic stage, and something only time can tell.
165. The State may choose from a number of policy outcomes; they may make all marriage and family related laws 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 legislatures132 takes action and enacts law or frameworks, in the absence of a central law. 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.
166. 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 132 Entry 5, List III of the Constitution of India.
89granted, 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.
167. The petitions are disposed of in the above terms. Pending applications (if any) are disposed of.
………………..................................................J. [S. RAVINDRA BHAT] ….....................................................................J. [HIMA KOHLI] NEW DELHI;
OCTOBER 17, 2023 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION Writ Petition (Civil) No. 1011 of 2022 Supriyo @ Supriya Chakraborty & Anr. ….Petitioner(s) Versus Union of India ….Respondent(s) With Writ Petition (Civil) No. 1020 of 2022 Writ Petition (Civil) No. 1105 of 2022 Writ Petition (Civil) No. 1141 of 2022 Writ Petition (Civil) No. 1142 of 2022 Writ Petition (Civil) No. 1150 of 2022 Writ Petition (Civil) No. 93 of 2023 Writ Petition (Civil) No. 159 of 2023 Writ Petition (Civil) No. 129 of 2023 Writ Petition (Civil) No. 260 of 2023 Transferred Case (Civil) No. 05 of 2023 Transferred Case (Civil) No. 06 of 2023 Writ Petition (Civil) No. 319 of 2023 1 Transferred Case (Civil) No. 07 of 2023 Transferred Case (Civil) No. 08 of 2023 Transferred Case (Civil) No. 10 of 2023 Transferred Case (Civil) No. 09 of 2023 Transferred Case (Civil) No. 11 of 2023 Transferred Case (Civil) No. 12 of 2023 Transferred Case (Civil) No. 13 of 2023 Writ Petition (Civil) No. 478 of 2023 JUDGMENT PAMIDIGHANTAM SRI NARASIMHA, J.
1. I am conscious of the ordeals that arise from a multiplicity of judicial opinions in cases involving constitutional questions. Yet, I consider it worthwhile to pen the present opinion, given the significant nature of questions involved. Polyvocality in the exercise of the adjudicatory function may not necessarily be viewed with discomfort; if complemented by judicial discipline, it is truly reflective of the diversity of judicial thought.
2. The constitutional questions for which we seek answers in the present set of petitions are two-fold: (a) the status of the right to marry for LGBTQ+ couples and (b) depending upon the answer to the first, the remedy that must ensue.
With respect to the first, the petitioners assert that not only do they have the right to marry under the Constitution, but also that through an interpretative 2 process such a right must be read into the existing legislative framework governing marriages. The respondents, oppose both the foundations upon which the petitioners seek to establish their right, and at the same time they remind us of the judicial limitations on the issuance of positive directions for enforcement of such a right.
3. 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. I will supplement his findings with some of my own reasons.
Since the broad arguments and submissions have been succinctly captured in the opinion of the learned Chief Justice, I find no reason to separately enlist them here.
4. At the outset, I will set out my conclusions, which are also in complete consonance with that of Justice Bhat in his opinion.
a. The question of marriage equality of same sex/LGBTQ+ couples did not arise for consideration in any of the previous decisions of this Court, including the decision in Navtej Singh Johar & Ors. v. Union of India1 and NALSA v. Union of India2. Consequently, there cannot be a binding precedent on this count. The reasons for arriving at this conclusion are articulated in the opinion of Justice Bhat.
b. The rights of LGBTQ+ persons, that have been hitherto recognized by this Court, are the right to gender identity, sexual 1 (2018) 10 SCC 1 2 (2014) 5 SCC 438 3 orientation, the right to choose a partner, cohabit and enjoy physical & mental intimacy. In the exercise of these rights, they have full freedom from physical threat and from coercive action, and the State is bound to afford them full protection of the law in case these rights are in peril.
c. There is no unqualified right to marriage guaranteed by the Constitution, that qualifies it as a fundamental freedom. With respect to this, I agree with the opinion of Justice Bhat, but will supplement it with some additional reasons.
d. The right to marriage is a statutory right, and to the extent it is demonstrable, a right flowing from a legally enforceable customary practice. In the exercise of such a right, statutory or customary, the State is bound to extend the protection of law to individuals, so that they can exercise their choices without fear and coercion. This, in my opinion, is the real import of the decisions in Shafin Jahan v. Asokan K.M.3 and Shakti Vahini v. Union of India4.
e. The constitutional challenge to the Special Marriage Act, 1954 and the Foreign Marriage Act,1969 must fail, for the reasons indicated in the opinion of Justice Bhat.
f. Similarly, Justice Bhat also rightly finds the semantic impossibilities of gender-neutral constructions of the Special Marriage Act, 1954 and the Foreign Marriage Act,1969. On both
(e) and (f), the opinion of Justice Bhat is exhaustive as to the reasons, and they need not be supplemented.
g. I find that a right to a civil union or an abiding cohabitational relationship conferring a legally enforceable status cannot be situated within Part III of the Constitution of India. On this count too, I agree with the conclusions of Justice Bhat, and supplement them with my own reasons.
3(2018) 16 SCC 368 4 (2018) 7 SCC 192 4 h. I agree with the reasoning and the conclusion of Justice Bhat with respect to the constitutionality of Regulation 5(3) of the CARA Regulations, 2020.
Marriage as Social Institution and the Status of the Right to Marry
5. There cannot be any quarrel, in my opinion, that marriage is a social institution, and that in our country, it is conditioned by culture, religion, customs and usages. It is a sacrament in some communities, a contract in some other. State regulation in the form of codification, has often reflected the customary and religious moorings of the institution of marriage. An exercise to identify the purpose of marriage or to find its ‘true’ character, is a pursuit that is as diverse and mystic as the purpose of human existence; and therefore, is not suited for judicial navigation. But that does not render the institution meaningless or abstract for those who in their own way understand and practice it.
6. In India, the multiverse of marriage as a social institution, is not legally regulated by a singular gravitational field. Until the colonial exercise of codification of regulations governing marriage and family commenced, the rules governing marriage and family, were largely customary, often rooted in religious practice.
This exercise of codification, not always accurate and many a times exclusionary, was the product of the colonial desire to mould and reimagine our social institutions. However, what is undeniable is that, impelled by our own social reformers, the colonial codification exercise produced some reformatory legislative instruments, ushering in some much-needed changes to undo systemic inequalities. The constitutional project that we committed ourselves to in the year 1950, sought to recraft some of our social institutions and within the 5 first half decade of the adoption of the Constitution, our indigenous codification and reformation of personal laws regulating marriage and family was underway.
7. Even when our own constitutional State attempted codification and reform, it left room for customary practices to co-exist, sometimes providing legislative heft to such customary practices. Section 5(iv)5, section 5(v)6, section 77, and section 29(2)8 of the Hindu Marriage Act, 1955 are illustrative in this regard.
Similarly, the Special Marriage Act, 1954 in provisos to sections 4(d)9 and section 15 (e)10 saves customary practices, without which the marriage would have been otherwise null and void. Same is the case with the proviso to section 5 “5. Conditions for a Hindu marriage. – A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two.” 6 “5. Conditions for a Hindu marriage. – A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.” 7 “7. Ceremonies for a Hindu marriage.— (1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the Saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.” 8
29. Savings.— (2) Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act.” 9 “4. Conditions relating to solemnization of special marriages .―Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely:―
(d) the parties are not within the degrees of prohibited relationship:
Provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship;” 10
15. Registration of marriages celebrated in other forms.―Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage solemnized under the Special Marriage Act, 1872 (3 of 1872), or under this Act, may be registered under this Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled, namely:―
(e) the parties are not within the degrees of prohibited relationship:
Provided that in the case of a marriage celebrated before the commencement of this Act, this condition shall be subject to any law, custom or usage having the force of law governing each of them which permits of a marriage between the two” 6 4(d) of the Foreign Marriage Act, 196911. Legislative accommodation of customary practices is also reflected in section 5 of the Anand Marriage Act, 190912.
8. The legal regulation of the institution of marriage, as it exists today, involves regulation of the solemnisation or ceremony of marriage, the choice of the partner, the number of partners, the qualifying age of marriage despite having attained majority, conduct within the marriage and conditions for exit from the marriage.
9. As to ceremonies and solemnisation, section 2 of the Anand Marriage Act, 190913, section 3(b) of the Parsi Marriage and Divorce Act, 1936 14, section 10, 11 & 25 of the Indian Christian Marriage Act, 187215 and section 7 of the Hindu 11 “4. Conditions relating to solemnization of foreign marriages.—A marriage between parties one of whom at least is a citizen of India may be solemnized under this Act by or before a Marriage Officer in a foreign country, if, at the time of the marriage, the following conditions are fulfilled, namely:—
(d) the parties are not within the degrees of prohibited relationship:
Provided that where the personal law or a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship.” 12
5. Non-validation of marriages within prohibited degrees.—Nothing in this Act shall be deemed to validate any marriage between persons who are related to each other in any degree of consanguinity or affinity which would, according to the customary law of the Sikhs, render a marriage between them illegal.” 13
2. Validity of Anand marriages.—All marriages which may be or may have been duly solemnized according to the Sikh marriage ceremony called Anand commonly known as Anand Karaj shall be, and shall be deemed to have been with effect from the date Of the solemnization or each respectively, good and valid in law.” 14
3. Requisites to validity of Parsi marriages.— (1) No marriage shall be valid if—
(b) such marriage is not solemnized according to the Parsi form of ceremony called “Ashirvad” by a priest in the presence of two Parsi witnesses other than such priest;” 15 Section 10 of the Act reads:
“10. Time for solemnizing marriage.—Every marriage under this Act shall be solemnized between the hours of six in the morning and seven in the evening:” Section 11 reads:
“11. Place for solemnizing marriage.—No Clergyman of the Church of England shall solemnize a marriage in any place other than a church where worship is generally held according to the forms of the Church of England, unless there is no such church within five miles distance by the shortest road from such place, or unless he has received a special license authorizing him to do so under the hand and seal of the Anglican Bishop of the Diocese or his Commissary.” Section 25 reads:
“25. Solemnization of marriage.—After the issue of the certificate by the Minister, marriage may be solemnized between the persons therein described according to such form or ceremony as the Minister thinks fit to adopt:
Provided that the marriage be solemnized in the presence of at least two witnesses besides the Minister.” 7 Marriage Act, 1955 explicitly recognize the central role that religious ceremonies play in solemnisation of marriages. The Muslim Personal Law (Shariat) Application Act, 193716 clearly saves the application of personal law to marriages, including the nature of the ceremony. Viewed in this perspective, the diverse religious practices involved in solemnizing marriages are undeniable.
10. The choice of the partner is not absolute and is subject to two-dimensional regulations: (i) minimum age of partners and (ii) the exclusions as to prohibited degrees. There is a differential minimum age prescription for male and female partners in most legislations. Thus males, who have otherwise attained the age of majority, cannot marry under these enactments, even though they exercise many other statutory and constitutional rights when they attain the age of eighteen.
11. The concept of prohibited degrees of relationship, is statutorily engraved in section 5 of the Anand Marriage Act, 1909, section 3(a) of the Parsi Marriage and Divorce Act, 193617, section 5(iv) and (v) of the Hindu Marriage Act, 1955 and sections 4(d) & section 15(e) of the Special Marriage Act, 1954. Persons who have attained the requisite age of marriage under these enactments, have their choice and consenting capacities restricted, to this extent.16
Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 reads:
“2. Application of Personal Law to Muslims.—Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal properly inherited or obtained under contract or gift or any other provision of Personal Law. marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).” 17
3. Requisites to validity of Parsi marriages.- [(1)] No marriage shall be valid if-
(a) the contracting parties are related to each other in any of the degrees of consanguinity or affinity set forth in Schedule I; or 8
12. In my considered opinion, the institutional space of marriage is conditioned and occupied synchronously by legislative interventions, customary practises, and religious beliefs. The extant legislative accommodation of customary and religious practices is not gratuitous and is to some extent conditioned by the right to religion and the right to culture, constitutionally sanctified in Articles 25 and Article 29 of the Constitution of India. This synchronously occupied institutional space of marriage, is a product of our social and constitutional realities, and therefore, in my opinion, comparative judicial perspectives offer little assistance. Given this nature of marriage as an institution, the right to choose a spouse and the right of a consenting couple to be recognized within the institution of marriage, cannot but be said to be restricted.
13. The learned Chief Justice has opined that marriage may not attain the social and legal significance it currently has if the State had not recognised and regulated it through law. It is further opined that marriage has attained significance because of the benefits which are realised through it. In this context, it is necessary to recount that until the post constitutional codification of laws relating to marriage and divorce, there was no significant State intervention on customary laws relating to marriage. Even today, much of the Mohammedan law of marriage is governed by religious texts and customs and there is hardly any State intervention. The Sixth Schedule areas under the Constitution are largely governed by customary laws of marriage. That the State has chosen to regulate the institutional space of marriage and even if such regulation occupies the space in toto, by itself does not imply that marriage attained significance due to State recognition.
914. I must hasten to add that the aforesaid recollection of legislative illustrations was with a view to demonstrate the cultural relativism involved in the idea of marriage. No singular right can inform unimpeded entry to and unregulated exit from the institution of marriage; for that would disassociate the institution of marriage from its social context. The claim of the right to marry, de-hors the existing statutory framework, is nothing but a claim to create a legally and socially enforceable status. It is not a claim against criminalisation of sexual conduct, which was the issue in Navtej (supra). It is nothing but a prayer of mandamus to create the necessary legislative and policy space for recognition of relationships as marriages in the eyes of law. The prayer to recognize such a right is not one that expects the State to desist from pursuing an act, but one which will place positive obligations upon the State to erect new laws, or at least amend existing laws. I say laws, because marriage laws do not stand in isolation, they interact in multifarious ways with succession, inheritance and adoption laws, to name a few. The content of the right claimed by the Petitioners is such that it clearly places positive legislative obligations on the State, and therefore, cannot be acceded to. That there cannot be a mandamus to amend or enact laws, is such a deeply entrenched constitutional aphorism, which need not be burdened by quotational jurisprudence. We are afraid, that the creation of social institutions and consequent re-ordering of societal relationships are ‘polycentric decisions’, which have “multiplicity of variable and interlocking factors, decisions on each one of which presupposes a decision on all others”18, decisions that cannot be rendered by one stroke of the judicial gavel.
18Indian Ex-Service Movement v. Union of India, (2022) 7 SCC 323, 68.
10Re: The impermissibility of the creation of a right to a union or an abiding cohabitational relationship
15. Having concluded that there exists no unqualified right to marry, in the ordinary course, no occasion would have arisen for any further deliberation. However, as the learned Chief Justice, in his opinion, has arrived at a conclusion that there exists a constitutional right to a union or an abiding cohabitational relationship, it is necessary for me to express my opinion on this new construction.
16. The learned Chief Justice locates components of this right to union or an abiding cohabitational relationship under Article 19(1)(a), Article 19(1)(c), Article 19(1)(e), Article 21 and Article 25 of the Constitution. In my opinion, it would not be constitutionally permissible to identify a right to a union or an abiding cohabitational relationship mirroring the institution of marriage. The learned Chief Justice identifies ‘tangible’ and ‘intangible’ benefits (bouquet of entitlements) that arise from state recognition and regulation of marriages. The Chief Justice further opines that the right to marriage is not fundamental.
However, it is these very tangible and intangible benefits, the denial of which, according to the learned Chief Justice must inform the reading of a constitutional right to an abiding cohabitational union. In other words, the benefits of marriage, however fundamental to a fulfilling life do not make marriage itself a fundamental right, but they render the right to an abiding cohabitational union fundamental. I find it difficult to reconcile these.
17. The learned Chief Justice opines that “it is insufficient if persons have the ability and freedom to form relationships unregulated by the State. For the full 11 enjoyment of such relationships, it is necessary that the State accord recognition to such relationships. Thus, the right to enter into a union includes the right to associate with a partner of one’s choice, according recognition to the association, and ensuring that there is no denial of access to basic goods and services is crucial to achieve the goal of self-development.” The opinion of the Chief Justice, thereafter, classifies that status of two persons in relationship:
(a) ‘relationships’ which do not have legal consequences, (b) ‘unions’ which have legal consequences and marriages. In my considered opinion, it is in positively mandating the State to grant recognition or legal status to ‘unions’ from which benefits will flow, that the doctrine of separation of powers is violated. The framing of a positive right and the positive entitlements which flow therefrom, essentially require the State to regulate such unions and benefits.
In my opinion, the direction in effect, is to amend existing statutory frameworks, if not to legislate afresh.
18. Additionally, the opinion of the learned Chief Justice, situates the right to choice of a partner and right to legal recognition of an abiding cohabitational relationship within Article 25 of the Constitution of India. Emphasis is placed on the term “freedom of conscience” which is placed alongside the right to freely profess, practice and propagate religion. The opinion situates in this freedom of conscience, the right not only to judge the moral quality of one’s own action but also to act upon it. If that were permissible under Article 25, then the textual enumeration of freedoms in Article 19 become redundant, since these freedoms can be claimed to be actions on the basis of one’s own moral judgment. I find it difficult to agree with such a reading of Article 25.
1219. I am not oblivious to the concerns of the LGBTQ+ partners with respect to denial of access to certain benefits and privileges that are otherwise available only to married couples. The general statutory scheme for the flow of benefits gratuitous or earned; property or compensation; leave or compassionate appointment, proceed on a certain definitional understanding of partner, dependant, caregiver, and family. In that definitional understanding, it is no doubt true, that certain classes of individuals, same-sex partners, live-in relationships and non-intimate care givers including siblings are left out. The impact of some of these definitions is iniquitous and in some cases discriminatory. The policy considerations and legislative frameworks underlying these definitional contexts are too diverse to be captured and evaluated within a singular judicial proceeding. I am of the firm belief that 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.
20. For the reasons stated above, and in view of the preceding paragraph, the writ petitions are disposed of.
……………………………….J. [PAMIDIGHANTAM SRI NARASIMHA] October 17, 2023 New Delhi.
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