New Delhi, Oct 17 (PTI) Justice S Ravindra Bhat on Tuesday said the Supreme Court was “alive” to the feeling of being left out experienced by the queer community but addressing their concerns would require a comprehensive study of its implications involving a multidisciplinary approach and polycentric resolution.
Justice Bhat, who penned a separate judgement for himself and Justice Hima Kohli on a batch of pleas seeking legal validation of same-sex marriage, said previous verdicts of the apex court have established that queer and LGBTQ+ couples too have the right to union or relationship but this does not extend to a right to claim entitlement to any legal status for the said union or relationship.
A five-judge constitution bench headed by Chief Justice D Y Chandrachud refused to accord legal recognition to same-sex marriage, saying there was “no unqualified right” to marriage except that recognised by the statute.
The bench, also comprising Justices Sanjay Kishan Kaul, Bhat, Kohli and P S Narasimha, delivered four separate verdicts on a batch of 21 petitions seeking legal sanction for same-sex marriages.
In his 89-page judgement, Justice Bhat said, “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.” “There is no unqualified right to marriage except that recognised by statute including space left by custom,” he said.
Justice Bhat said the State shall ensure that consistent with the previous judgments of the apex court, including the landmark verdicts on right to privacy and decriminalising consensual gay sex, 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 (Centre and others) shall take suitable steps to ensure that queer couples and transgender persons are not subjected to any involuntary medical or surgical treatment,” he said.
Justice Bhat said the challenge to the Special Marriage Act on the ground of under-classification was not made out and the petitioner’s prayer to read various provisions in a “gender neutral” manner so as to enable same-sex marriage was unsustainable.
“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,” he said.
He said these measures need to be taken with expedition because inaction will result in “injustice and unfairness” with regard to the enjoyment of such benefits, available to all citizens who are entitled and covered by such laws, regulations or schemes like those relating to employment benefits, provident fund, gratuity, family pension, employee state insurance and medical insurance.
“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,” Justice Bhat said.
He said 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…faced by queer couples cohabiting together, would definitionally, however, not apply to them,” he said.
Justice Bhat said transgender persons in heterosexual relationships have the freedom and entitlement to marry under the existing statutory provisions.
“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,” he said.
Justice Bhat said regulation 5(3) of the Central Adoption Resource Authority (CARA) Regulations, which deals with eligibility criteria for prospective adoptive parents, 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,” he said.
“In an unforeseen eventuality, the adopted child in question, could face exclusion from the benefits otherwise available to adopted children of married couples. This aspect needs further consideration, for which the court is not the appropriate forum,” Justice Bhat said.
He said 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,” he said, adding that these findings 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. PTI ABA SJK SMN
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