New Delhi: Arshiya Takkar and her same-sex partner, Chand Chopra, a practising advocate, began a relationship nearly 10 years ago in June 2015.
In December 2023, the Delhi-based couple celebrated their union with a commitment ceremony in New Delhi after the Supreme Court ruling in Supriyo vs Union of India upheld the fundamental right of same-sex couples to a relationship or union, while not recognising their marital rights.
“We had hoped for the best when the Supreme Court was taking up the pleas seeking marriage equality for same-sex couples, among others, in 2023 and had gone ahead and planned a commitment ceremony,” Takkar told ThePrint. “However, the five-judge bench’s decision to reject these pleas came as a bitter shock to us.”
Despite living together as a couple for a decade, Takkar and Chopra have been deprived of a basic right which, they say, heterosexual couples take for granted—the right to make medical decisions for each other.
Now the main petitioner in a case before the Delhi High Court, Takkar is seeking to address the issue of a lack of a legal framework or recognition for same-sex “partners in a union,” especially when it comes to consent-giving during medical emergencies or treatment. She argued that such a lack of recognition violated fundamental rights.
Medical consent is usually given by family members.
Takkar said: “We live our lives like another couple does. So, we just want equal protection of the law.”
“If we were to be recognised equally, we wouldn’t have these issues. If you are going through a medical emergency, your same-sex partner, who, in a lot of cases, is the only family you have, is not allowed to make medical decisions for you. This becomes complicated because medical emergencies can come anytime and no one but your partner will have your best interest at heart as they have the most to lose if something happens to you,” she said, adding that heterosexual couples have it much easier.
The petitioner told ThePrint that the Delhi High Court’s decision in the case would impact a large community. “If people like us, who have the privilege of the love of our friends and families, don’t go and move this petition before the courts, we are not doing our duty.”
When her partner was down with dengue, her brother had to step in to provide consent and information, Takkar recalled. “Now, her brother lives in the UK, and she has no immediate family nearby. It is a scary situation to think of. The law essentially tells LGBTQ+ couples that you are no one to your partner legally,” she said.
Adding, “One way out of it—something we have also suggested in our petition is to allow the person to give a medical power of attorney or something on those lines to the hospital, showing that the person has authorised their partner to give consent on their behalf.”
Takkar told ThePrint that Indian law has some gaps when it comes to same-sex couples.
“Although we have a fundamental right to a relationship, and a right to cohabit without discrimination, we have no laws regulating that relationship or union. Hence, multiple contingencies arise. How will it harm anyone?” she asked. “It will give us the right to live well, which we deserve as much as everyone else does.”
Takkar’s petition & experiences driving it
Acting on Takkar’s petition flagging the absence of a proper legal framework on medical consent for LGBTQ+ partners “in a union,” the Delhi High Court has directed the Centre to file its response in four weeks. The next hearing is slated for 27 October.
On 17 July, a bench of Justice Sachin Datta also orally asked the government’s lawyer, “What will be the case if the person is an orphan? What if the person is living alone? Who will give consent for them?”
Takkar’s 702-page petition before the HC emphasises the need for recognition of her union in medical contexts, particularly since her partner’s immediate family resides in different states or countries and will potentially be inaccessible during a medical emergency.
Highlighting her indispensable role as her partner’s decision-maker in such situations, Takkar pointed to the “absence of a clear legal framework or common law recognition” for partners in a union for the purpose of medical consent during treatment or in emergencies.
Significantly, Takkar’s plea flags Clause 7.16 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, which mandates consent for medical procedures or treatment from a “husband or wife, parent or guardian in the case of a minor, or the patient himself”.
“This lack of explicit recognition of partners in a union renders the petitioner effectively powerless to make critical medical decisions for Ms Chopra, or vice-a-versa, a right readily available to heterosexual partners/couples under the prevailing 2002 Regulations,” the plea further states.
Violation of rights of same-sex couples
The plea says that such a lack of recognition violates the constitutional obligation to acknowledge such unions under Part III of the Constitution, guaranteeing fundamental rights. By failing to include or recognise same-sex partners for medical decision-making, the prevailing legal classification “is manifestly arbitrary”, thereby violating the fundamental right to equality under Article 14, the plea adds.
Systemic exclusion constitutes discrimination on the grounds of sex and violates Article 15 of the Constitution, as well, argues the petition, adding that different sexual orientations are recognised as covered under the meaning of “sex”, according to the top court’s 2018 judgment in the Navtej Johar vs Union of India.
“This discriminatory classification based on sexual orientation—by privileging heterosexual relationships—lacks any reasonable basis,” the plea says.
It seeks a court directive to frame guidelines directing hospitals or physicians to recognise non-heterosexual partners as medical representatives and grant them access during medical treatment. Alternatively, the petitioners are seeking a court declaration that a medical power of attorney or even an affidavit given in advance by a patient to their non-heterosexual partner is sufficient for the partner to act as a duly authorised medical representative when the time comes.
Now, all eyes are on the Centre, slated to submit its response before the Delhi HC.
This is an updated version of the report
(Edited by Sugita Katyal)
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