By - King Stubb & Kasiva on October 27, 2023
The notion of Gender, sexuality and one’s identity has undergone a huge quantum of a shift in society in the last decades owing to an increased awareness and acceptability on the binary and non – binary choices of genders. The increased awareness and rights of the LGBTQ+ community has led to an exponential rise in the number of individuals identifying themselves as non – binary to come forward and accept their sexuality and demand equal rights of identity, life, and among others, the right to marry.
In a recent judgment of the Hon’ble Supreme Court of India, the proposition to demand equal rights to marry, have a legalized conjugal relationship at a marital home and right to adopt were raised, which the Hon’ble Supreme Court has rejected partly and accepted partly.
In the landmark judgment of Supriya Chakraborthy & Anr. @Supriyo V. Union of India, the Hon’ble Supreme Court of India has recently declined to legally grant recognition to the same sex marriages across the country along with emphasizing the fact that the LGBTQ+ community is free to recognize themselves as being in a consensual legal conjugal relationship but without having the recognition for marriage.
It was contended on behalf of the petitioners that since heterosexual couples were bestowed with the rights under the Indian law to enter into a legally valid marital relationship based upon their respective personal laws or secular laws governing marriage, the same right should be extended to homosexual or cis-gendered couples to have their marital union legally recognized by the constitution based upon the right to life and equality.
While laying down the law with regards to the same contention, a five – judge bench comprising Chief Justice of India along with Justice S. Ravindra Bhat, Justice S.K Kaul and Justice P.S Narsimha noted that queerness is a natural phenomenon and it is the responsibility of the government to ensure that no individuals are discriminated based on their sexual orientation or preferences and gender identity.
Moreover, it cannot be the law of a civilized society that individuals are denied or denuded of their basic rights of choosing their partners or couples and committing to them just because they belong to a separate class of gender or sexual orientation. However, extending the same claim or right to a legal union cannot be determined as valid.
The Hon’ble Supreme Court of India also ordered for a “High Level Committee” to be called for the above mentioned purpose of evaluating the discriminatory practices against the community along with determining the scope and nature of compensatory measures to be used in order to restore the injustices caused to them and prevent such instances from occurring in the future.
While observing the right to adopt children by the LGBTQ+ couples, it was noted that adoption may be held valid in case the same is done by the couple but this would also lead to striking down the Central Adoption Regulation Authority’s powers and guidelines which laid down that only heterosexual couples shall be allowed to adopt and laid down other guidelines in favour of the heterosexual couples. Secondly, the notion of good and bad parenting which prohibited numerous couples from becoming parents was also taken to task by the Hon’ble Courts and it was correctly mentioned in the reasoning that such notions cannot prevent the couples from adopting children.
It was also mentioned in the observations of the court that entering into the personal realm of the religions by amending the personal laws of marriage would have a delirious impact upon the Constitution of the country as well as would amount to interference with the powers of the legislature which solely possesses the right to draw up the statutes of the country and amend them under Article 368 of the Constitution.
Additionally, the Hon’ble Supreme Court has nowhere declined to recognize the rights of the non – binary or cis-gendered or those having separate sexual orientation as not having equal rights or equal protection of the laws and the constitution but merely declined the right to have a union of marriage recognized by the laws of the land.
The present judgment, which has declined the rights to LGBTQ+ couples to have a legal union recognized by law is an example of how the Hon’ble Supreme Court of India and the Indian Judiciary has declined to interfere with the powers of the legislature while making laws and has adequately taken measures to uphold the equal rights and privileges of non – binary couples to enjoy their constitutional guarantees, therefore acting as a guardian of fundamental rights along with respecting the doctrine of separation of powers.
In the present case, it has been rightly noted by the courts that the gay, lesbian or other couples have non – declinable right to live in a formal civil union without any disturbance or discrimination from the society but shall be subject to equal protection of the law. Mere declination of the right to marry shall also not invalidate any right to live in a civil union or choose partners of their choice as already guaranteed by the Constitution of the country under the Fundamental Rights.
As a response to the judgment, it was noted by numerous eminent jurists that though the judgment has recognized the equal rights for civil union and co – habitation, it has not recognized the need to give validity to sacred union of marriage under personal and secular laws of marriage. Therefore, there is a need to evolve the jurisprudence of giving the rights of marriage and equal rights under the law of the land.
A five-judge Constitution bench of the apex court refused to grant legal recognition to same-sex marriages. The bench also differed on applicability of adoption rules for queer couples while denying adoption rights to LGBTQIA couples.
The queer movement in India is both a political movement that focuses on the rights of lesbian, bisexual, gay, transgendered individuals, as well as an ideological movement that challenges the larger structures of heteropatriarchy.