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Why Supreme court intentionally not adjudicated the issue of same sex marriage?

21 min read

By Adv Rishabh Kumar

Published on: November 08, 2023 at 01:30 IST

The deliberate avoidance by the Supreme Court of addressing the same-sex marriage issue has left many who were eagerly awaiting a significant 2023 verdict. With emotions running high, it’s clear that the repercussions of this fundamental change will extend to various aspects of the legal landscape.

In the article, we will provide a concise overview of the events that transpired on the pivotal date of October 17, 2023. Although it may not be the outcome that the LGBTQ+ community had fervently hoped for, but it serves as a renewal of their determination and resilience, fueling their resolve to continue the fight.

In the legal case titled “Supriyo vs. Union of India,” a complex and pivotal legal dispute has unfolded, bearing substantial implications for the Indian society at large. This case revolves around a range of critical factors and has garnered considerable attention from legal experts, advocates, and the general public. this case revolves around the right to same-sex marriage and the legal recognition of such unions.

The Case raises questions about the constitutionality of current laws and whether they adequately protect the rights of LGBTQ+ individuals?

The background of the case is rooted in the evolving societal understanding of LGBTQ+ rights and the broader movement for LGBTQ+ equality. It’s important to acknowledge the historical context that has led to this legal battle.

Before dwelling deep into the topic, it is prominent to note the meaning of LGBTQ+ community as it is an inclusive term that encompasses a diverse group of people with non-heterosexual and non-cisgender identities.

The acronym “LGBTQ+” stands for:

  1. L – Lesbian: Lesbian refers to women who are attracted romantically, emotionally, and/or sexually to other women.
  2. G – Gay: Gay typically refers to men who are attracted romantically, emotionally, and/or sexually to other men. However, it can also be used more broadly to describe individuals with same-sex attraction, regardless of their gender.
  3. B – Bisexual: Bisexual individuals are attracted romantically, emotionally, and/or sexually to both individuals of their own gender and individuals of other genders.
  4. T – Transgender: Transgender people have a gender identity that differs from the sex they were assigned at birth. They may transition to align their appearance and identity with their true gender.
  5. Q – Queer (or Questioning): “Queer” is an umbrella term that can encompass a wide range of non-heteronormative sexual orientations and gender identities. Some individuals use “queer” to describe their own experiences, while others may use it to reject specific labels.
  6. + – Plus: The “+” sign signifies the inclusivity of the term, recognizing that there are other identities and orientations beyond those represented in the acronym.

It’s important to understand that the LGBTQ+ community is highly diverse, and there are numerous identities and orientations that may not be explicitly mentioned in the acronym. Some individuals identify as pansexual, asexual, genderqueer, non-binary, and more, and they are part of the broader LGBTQ+ community. Additionally, people’s experiences and identities are highly individual and may not fit neatly into these categories. Respect for self-identification and recognition of the full spectrum of human diversity are essential in supporting and understanding the LGBTQ+ community.

several crucial aspects of the Judgement are highlighted such as:

  1. Fundamental Right to Marriage: The Constitution of India does not explicitly grant the fundamental right to marriage. This means that marriage, as a concept and institution, is not directly codified as a fundamental right within the constitutional framework.
  2. Origins of Marriage: It’s noted that marriage predates the formation of the state, emphasizing that its roots lie in societal practices rather than being a creation of the law. This underscores the deeply ingrained social nature of marriage.
  3. CJI’s Opinion: The Chief Justice of India (CJI) expressed an opinion that the state has an obligation to provide or establish an institution that allows queer couples to enjoy the benefits of marriage. This opinion aligns with the idea of inclusivity and equal treatment under the law, emphasizing the need for legal recognition of same-sex unions.
  4. Alternative Institution – Civil Union: The CJI suggested the concept of a ‘civil union’ as a potential solution for providing queer couples with rights and benefits similar to those of traditional marriage. This implies the creation of a separate legal institution that grants legal recognition and rights to same-sex couples.

When the question arises of legally recognizing same sex marriage a major aspect that comes into consideration is:

In LGBTQ+ families, the concepts of “mother” and “father” can be more fluid and may not necessarily align with traditional heterosexual family structures.

LGBTQ+ families can include various parental roles, and the terminology used to describe these roles can vary based on the family’s unique dynamics. Here are some common scenarios:

  1. Same-Sex Couples: In families with two parents of the same gender, the terminology used may be based on personal preference. For example, a same-sex couple with children may choose to use “Mom” for both parents or “Dad” for both parents. Some couples may prefer to use different titles, such as “Mama” and “Mommy” or “Daddy” and “Papa.” The choice of terms can be a matter of individual choice and may vary from family to family.
  2. Single-Parent Families: LGBTQ+ individuals who are single parents may choose any parental title that aligns with their gender identity, or they may opt for a neutral term like “Parent” or “Guardian.”
  3. Transgender Parents: Transgender parents who have transitioned may use the parental title that corresponds to their gender identity. For example, a transgender woman who is a parent may use “Mom,” and a transgender man may use “Dad.”
  4. Non-Binary and Gender-Expansive Parents: Non-binary or gender-expansive parents may use gender-neutral terms like “Parent,” “Caregiver,” or any other title that resonates with them and their children.

It’s essential to respect and honor the choices made by LGBTQ+ parents when it comes to their parental titles. What matters most in any family is the love and care provided by the parents, rather than the specific labels used. Family dynamics and terminology can vary widely, and the most important aspect is creating a loving and supportive environment for the children.

Understanding the institution of marriage

Marriage is not defined universally, marriage is understood differently between culture, law and religion. For some marriage is a contact while some consider it a sacrament. Law defines the conditions requisite for a valid marriage.

Law validates marriage based on these prerequisites, like minimum age, consent of the parties. Once a couple marries it is on them to give meaning to that relationship, it is not possible for the courts to authoritatively condone a particular idea of marriage to be valid marriage.

It is a mutual union of the consenting parties wishing to share companionship in a life-long relationship. Although these aspects of marriage are considered to be the core components, existence or non-existence of these components does not predicate a valid marriage.

When a couple stays far from each other or does not procreate, marriage does not become invalid by itself. What this court understands is that the concept of marriage is not static, Sati was once a practice in India but later became barred.

Widow remarriage, another long standing custom of women not being permitted to remarry. Child marriage, forcefully without the legal consent of marrying parties without the understanding of its repercussions.

“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 3 – 7 schedules, It lies within the domain of Parliament and the state legislatures to enact laws recognizing and regulating queer marriage”

Why it was difficult for Supreme Court to give legal recognition to same sex marriage?

This Supreme Court has vested 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 Cause v. Union of India, held 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.

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 regional differences. The principle of non-discrimination in Article 14 and 15 (1) does not mandate that marriage must be organized and recognized in a uniform manner. The principle of equality does not postulate uniformity.

Legislations governing unions and the benefits which accrue because of unions do not become unconstitutional after the decriminalization of homosexuality in Navtej singh Johar case.

It is to be noted that Decriminalization of a sexual offence does not automatically confer legal recognition to a union.

Overall, the court system is an essential component of the legal framework in any society, ensuring that the rule of law is upheld, rights are protected, and justice is served. It serves as a critical institution for maintaining order, resolving conflicts, and upholding the principles of fairness and justice.

Role of the court

It is provital to understand the role of the Courts and its limitation as it plays a crucial role in shaping and recognizing legal rights, only after understanding it we can understand why Supreme court delebaratrly avoided giving legal recognition to same sex marriage.

Here’s how they contribute to the establishment and recognition of legal rights:

  1. Interpreting the Law: Courts interpret existing laws and legal provisions. Through their judgments, they clarify the scope and meaning of legal rights, ensuring that the law is applied consistently and fairly.
  2. Setting Legal Precedents: Court decisions establish legal precedents. These precedents serve as guidelines for future cases and influence how legal rights are understood and protected. Consistent rulings can solidify legal rights over time.
  3. Defending Constitutional Rights: Courts, especially in countries with written constitutions, are tasked with safeguarding constitutional rights. They ensure that government actions and laws conform to the constitution, protecting fundamental rights.
  4. Enforcing Contracts: Courts enforce contractual agreements, which are essential for protecting the rights of individuals and entities in commercial and personal transactions. The enforcement of contracts upholds legal rights and obligations.
  5. Reviewing Legislation: In some legal systems, courts can review the constitutionality of legislation. If a law is found to infringe upon rights guaranteed by the constitution, the court can strike it down, thereby reinforcing and preserving legal rights.
  6. Resolving Disputes: Courts provide a forum for individuals and organizations to resolve disputes related to their legal rights. Whether it’s a civil or criminal case, courts ensure that parties have the opportunity to assert and defend their rights.
  7. Protecting Vulnerable Populations: Courts often play a role in protecting the rights of vulnerable groups, such as children, the elderly, or individuals with disabilities. They ensure these individuals receive the legal recognition and protection they deserve.
  8. Reviewing Administrative Actions: Courts can review decisions made by government agencies to ensure that they adhere to the law. This review process safeguards the rights of individuals affected by these administrative actions.
  9. Upholding Individual Liberties: Courts protect individual liberties and rights, including freedom of speech, religion, and privacy. They issue judgments that ensure these rights are not violated by government or private entities.
  10. Advocacy for Equality: Courts can contribute to the recognition of equal rights, including the rights of minority groups. They may challenge discriminatory practices and policies, helping to promote equality under the law.

In essence, courts are a fundamental component of the legal system that actively shape, interpret, and enforce legal rights. Through their decisions and precedents, they provide legal recognition and protection for the rights of individuals and groups in society. Their role is integral to upholding the rule of law and ensuring that justice is served.

Limitation in role of Court

While courts play a crucial role in upholding the rule of law and protecting legal rights, they do have certain limitations, which are important to consider:

  1. Adjudication and Not Legislation: Courts interpret and apply existing laws; they don’t make laws. This means that their role is limited to the legal framework in place at a given time. They cannot create new laws or change existing ones.
  2. Subject to Interpretation: Legal decisions can be subject to interpretation, and different judges may have varying views on the same legal issues. This can lead to inconsistency in legal outcomes.
  3. Non-Enforcement: While courts issue judgments, they do not enforce them. The actual implementation of court orders and decisions relies on other government agencies, such as law enforcement and administrative bodies.
  4. Lack of Executive Power: Courts lack executive authority, so they cannot directly compel individuals or entities to take specific actions. They depend on the executive branch to enforce their orders.
  5. Lack of Remedies: In some cases, even when a legal right is recognized, there may be limited or no effective remedies available. Courts cannot always rectify all injustices.
  6. Cultural and Social Factors: Courts may face challenges in dealing with cases that involve complex cultural or social issues. Understanding and addressing these issues can be challenging.

It’s important to recognize these limitations in the role of courts to maintain a realistic perspective on their functions and the broader legal system. Courts are an integral part of upholding the rule of law, but they are not a panacea for all societal problems and conflicts.

In essence, this interpretation underscores the separation of powers within a legal system, where courts focus on interpreting and applying the law, while the legislative branch is responsible for shaping and modifying legal rules in line with the evolving needs and values of society. Courts are integral to upholding and safeguarding the rule of law within the parameters set by the legislature.

What is Queerness ‘Un-Indian’? Defining Indianness and Recognizing Queer Culture

After thorough deliberation, the Supreme Court has unequivocally established that queerness is an inherent aspect of Indian society. In the words of Justice D Y Chandrachud, “Queerness is a natural phenomenon known to India since ancient times. It is not confined to urban or elite circles.”

This recognition of the natural existence of queerness came to the forefront in the Navtaj Singh Johar case, where the court affirmed that queerness is not a mental disorder or an ailment in need of treatment. Furthermore, the court emphasized that queer love has thrived in India since ancient times. The colonial-era laws had wrongly isolated the queer community, subjecting them to unjust stigma and confinement.

The courts hold the perspective that queerness is not a foreign import but, rather, the prejudices against it are remnants of the colonial past. This acknowledgment is a step towards rectifying historical injustices.

Critics may argue that same-sex unions are not a traditional Indian practice. However, what defines a practice as Indian is its existence in India, occurrence in India, or its adoption by Indians. It is crucial to note that this determination is not contingent on numerical support, as constitutional guarantees remain unaffected by the level of acceptance of a particular practice. As the Supreme Court aptly stated, “Sexual and gender minorities are as Indian as their cisgender and heterosexual counterparts.” This assertion underscores the intrinsic Indian identity of all citizens, regardless of their sexual orientation or gender identity.

What are the right and restrictions to enter into a union? Can Queer persons cohabilitate?

Marriage attains significance as a legal institution, largely because of regulation by the state. By recognizing a relationship in the form of marriage, the state runs material benefits exclusive to marriage. 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 recognized by this Court in Navtej (supra).

The right of transgender persons to marry, what sexual rights exist for LGBTQ Community?

The right of transgender persons to marry and the sexual rights that exist for the LGBTQ+ community are essential aspects of individual freedom and equality. Let’s explore these concepts in more detail:

Right of Transgender Persons to Marry:

  1. Marriage Equality: Transgender individuals, like all individuals, have the right to marry the person they love, regardless of their gender identity. The recognition of this right is fundamental for ensuring equality under the law.
  2. Gender Identity Recognition: Legal systems should acknowledge and respect an individual’s self-identified gender. This includes recognizing transgender individuals according to their affirmed gender identity, which is crucial for their right to marry in alignment with their gender identity.
  3. Legal Reforms: Many countries have made legal reforms to ensure that transgender individuals can marry according to their affirmed gender. These reforms are essential to avoid discrimination and uphold the rights of transgender persons.

Sexual Rights for the LGBTQ+ Community:

  1. Consensual Sexual Activity: Members of the LGBTQ+ community, like all individuals, have the right to engage in consensual sexual activity with other adults. Legal systems should protect and uphold this right without discrimination.
  2. Protection from Discrimination: Laws and policies should prevent discrimination based on sexual orientation and gender identity in all aspects of life, including employment, housing, and public services. This protection ensures that LGBTQ+ individuals can exercise their sexual rights without fear of discrimination or persecution.
  3. Recognition of Gender Identity: Transgender and gender-diverse individuals have the right to have their gender identity recognized in official documents, which includes accurate gender markers on identification documents.
  4. Section 377 Decriminalization: A landmark moment in LGBTQ+ rights in India was the decriminalization of Section 377 of the Indian Penal Code in the Navtej Singh Johar vs. Union of India case in 2018. Section 377 had previously criminalized consensual sexual activity between adults of the same sex in private. The Supreme Court’s judgment declared that consensual same-sex relationships were no longer illegal.
  5. Marriage and Partnership Rights: While same-sex marriages are not yet legally recognized in India, the Navtej Singh Johar judgment has opened the door for the discussion of marriage rights for LGBTQ+ individuals. Legal reforms and discussions are ongoing to potentially grant same-sex couples the right to marry in the future.
  6. Civil Unions: The idea of introducing civil unions for same-sex couples, which could provide legal rights and protections similar to marriage, has been discussed in India. While this concept has been considered, it has not yet been implemented as a legal framework.
  7. Adoption Rights: Adoption rights for same-sex couples have seen changes over the years. While the Juvenile Justice Act 2015 allowed single individuals to adopt, a regulation introduced in 2022 made it more challenging for same-sex couples to adopt. Legal challenges and discussions regarding this issue continue.
  8. Social Acceptance and Awareness: Social attitudes towards LGBTQ+ individuals and their rights have gradually evolved. There is increasing awareness and support for LGBTQ+ rights, although challenges, stigma, and discrimination persist in various segments of society.
  9. Healthcare Access: Access to healthcare services, including transgender healthcare, is a crucial aspect of LGBTQ+ rights. Advocacy efforts continue to ensure equitable access to healthcare for LGBTQ+ individuals.
  10. Anti-Discrimination Laws: Legal reforms and advocacy aim to establish anti-discrimination laws that protect LGBTQ+ individuals in various aspects of life, including employment, housing, and public services.
  11. Protection from Violence and Hate Crimes: Laws should protect LGBTQ+ individuals from violence, harassment, and hate crimes based on their sexual orientation or gender identity. This protection is vital for their safety and well-being.
  12. Access to Education: LGBTQ+ individuals have the right to education that is inclusive and free from discrimination. This includes comprehensive sex education that addresses the needs and concerns of LGBTQ+ students.

Promoting and protecting the rights of transgender persons to marry and the sexual rights of the LGBTQ+ community is essential for creating a more inclusive and equitable society. Legal reforms and social acceptance play a crucial role in upholding these rights and ensuring that all individuals can live their lives authentically and without discrimination.

The state has an interest in regulating the intimate zone to democratize personal relationships. Whether the constitution recognized the right to marry did not arise before this court in justice K.S Puttaswamy nine judges, Shafin Jahan & Shaktivahini

CJI “Right to enter into a union is also grounded in Article 19(1)(e)

The constitution does not expressly recognize the 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.

The court cannot either strike down the constitutional validity of the Special Marriage Act (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 laws, allied laws such as the Indian Succession Act and the Hindu Succession Act, 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.

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 recognize 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 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.

The decisions of Navtej singh johar and K S Puttaswamy recognizes the right of queer couples to exercise the choice to enter unto a union. This relationship is protected from external threat discrimination on the basis of sexual orientation will violate Article 15.

Previous Landmark Judgments on LGBTQ+ Rights

Navtej Singh Johar Case

A momentous legal decision brought about a transformation in the realm of LGBTQ+ rights with the Navtej Singh Johar case. This landmark judgment effectively decriminalized Section 377 of the Indian Penal Code (IPC), heralding a new era of empowerment for the LGBTQ+ community and individual rights.

In a unanimous and historic verdict, the Indian Supreme Court pronounced that Section 377, a provision that had criminalized consensual sexual activity between adults of the same sex conducted in private, was unconstitutional. This decision marked a significant departure from the Court’s earlier stance in 2014, where it had upheld the same law.

The Court’s rationale for its decision was firmly rooted in the principles of the right to privacy, gender identity, and the bedrock of equality.

It asserted that Section 377 violated the fundamental rights of LGBTQ individuals, reaffirming their autonomy to choose their life partners without discrimination.

The Court, in a resounding voice, stressed the paramount importance of safeguarding human rights, even when they stand against the prevailing majority opinion. Furthermore, the judgment called for the eradication of the stigma and discrimination that the LGBTQ community has endured for far too long. This verdict was hailed as a momentous stride towards the recognition and protection of LGBTQ+ rights in India.

Naz Foundation Case

The abhorrent nature of Section 377, which had criminalized consensual sexual relationships among adults based on their sexual orientation, wreaked havoc on personal dignity, created turmoil regarding gender identity, and invaded the realm of privacy, all while undermining Article 21 of the Indian Constitution.

Why Supreme court avoided giving legal recognition?

CJI DY Chanderchud stated “It is for Parliament to decide whether a change in the regime of Special Marriage Act is needed ”

India is an electoral democracy, Supreme Court’s 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.

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.

Certainly, when considering the Supreme Court’s decision on same-sex marriage and LGBTQ+ rights in India, it’s essential to take into account various grounds and factors, including customs, societal attitudes, and cultural considerations. These elements contribute to the complex legal and social landscape surrounding the issue:

  1. Customary Practices: India is a diverse country with numerous cultural and religious customs. The prevailing customary practices often influence societal attitudes towards marriage and relationships. These customs can vary significantly across regions and communities, impacting the acceptance of same-sex relationships.
  2. Societal Attitudes: Public opinion and societal attitudes play a crucial role in shaping legal and policy decisions. Attitudes towards LGBTQ+ rights and same-sex relationships can be influenced by cultural, religious, and traditional beliefs, which can either foster acceptance or resistance.
  3. Religious Beliefs: India is a multi-religious nation with a multitude of faiths and belief systems. Religious beliefs can significantly impact perspectives on LGBTQ+ issues, as different religions may have varying views on sexual orientation and same-sex relationships.
  4. Cultural Diversity: The rich cultural diversity in India means that there is no single, uniform perspective on LGBTQ+ rights. Different regions and communities may have distinct views on these issues, influenced by their unique cultural contexts.
  5. Historical Context: India’s history has witnessed varying degrees of acceptance and discrimination against LGBTQ+ individuals. Understanding the historical context is crucial for evaluating the current legal and societal landscape.
  6. Intersection with Gender Norms: Gender norms and roles within Indian society can affect perceptions of same-sex relationships. Conforming to traditional gender roles may be seen as a societal expectation, and any deviation from these roles can face resistance.
  7. Legal Framework: The existing legal framework in India, including laws related to marriage and family, has a significant influence on the rights and recognition of LGBTQ+ individuals. Legal provisions have been evolving, but they are often interpreted within the context of cultural and societal norms.
  8. Public Discourse and Advocacy: The public discourse on LGBTQ+ issues and the advocacy efforts of civil society organizations and LGBTQ+ activists are instrumental in challenging existing norms and fostering acceptance. Public awareness and educational initiatives can shift attitudes over time.
  9. Generational Divide: There may be differences in attitudes towards LGBTQ+ rights across generations. Younger generations often exhibit greater acceptance, while older generations may hold more traditional views. This generational divide can shape the direction of societal change.

Considering these factors is crucial for a comprehensive understanding of the complexities surrounding LGBTQ+ rights in India. Legal decisions intersect with these societal and cultural elements, and navigating this intricate terrain is essential for progress in LGBTQ+ rights and recognition.

Observations and Directions by the Supreme court

The verdict, delivered by a five-judge Bench, consisting of Justices S Ravindra Bhat, Hima Kohli, P S Narasimha (in the majority), and Chief Justice of India D Y Chandrachud and Justice Sanjay Kishan Kaul (in the minority), marks a pivotal moment in India’s legal landscape, shedding light on the complexities and contentious nature of the issue that concluded on following observations.

Right To marry

Transgender persons in heterosexual relationships have the right to marry under existing law, including personal laws which regulate marriage. Intersex persons who identify as either male or female have the right to marry under existing law, including personal laws which regulate marriage.

The state must enable the LGBTQ community to exercise its right under the Constitution, queer persons have the right to freedom from coercion from their native families agencies of the states, including the police and other persons.

Civil Unions and Legal Protections

The judgment also explored the possibility of civil unions for same-sex couples, offering them legal rights and protections akin to marriage. However, the court, in alignment with the Solicitor General, maintained that such a decision should be determined by an elected legislature. The court argued that altering existing laws to accommodate same-sex couples would necessitate extensive changes and consultations involving various stakeholders.

Adoption Right

An integral component of the case revolved around adoption rights for same-sex couples. While the Juvenile Justice Act 2015 had allowed single individuals to adopt children, a subsequent regulation introduced in 2022 altered this policy, making it arduous for same-sex couples to adopt. The majority of the court upheld this regulation, asserting that it was beyond the judiciary’s purview to evaluate the implications of such changes on the legal framework.

In view of the interpretation of Regulation 5(3) of the adoption regulations. The issue of whether the CARA circular disproportionately impacted the queer community no longer arises

Union government and state governments and union territories shall not discriminate against the freedom of queer persons to enter into union with benefits under law.

Supreme court recorded 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.


However, 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. 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.

Additionally, the CJI opined that the right to choose 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.

While the courts may have been unable to provide the desired remedy, CJI categorically stated that the remedy is beyond the judiciary’s scope of powers. What people need to do is, bring awareness of it to facilitate a legislative change. Although a review plea has been preferred by the unsatisfied parties, which beg to hear the justification of Supreme Court for the half-cooked justice where they acknowledge the rights but fail to provide remedy.

Edited By: Bharti Verma, Associate Editor at Law Insider