Justice Ravindra Bhat
Certain observations made by Justice DY Chandrachud (as he then was) in Navtej Singh Johar v. Union of India judgment that decriminalised gay sex, went beyond the remit of the Supreme Court and were unnecessary, Justice S Ravindra Bhat has said in his majority judgment refusing to give legal recognition to same-sex marriages in India.
The paragraph referred to in the 2018 judgment, which read down Section 377 of the Indian Penal Code to the extent that it criminalised consensual homosexual relations, read as follows:
“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.”
The quote is attributed to an article entitled Unnatural Acts and the Constitutional Right to Privacy: A Moral Theory by American legal scholar David AJ Richards.
In yesterday’s verdict, Justice Bhat opined that social institutions cannot be directed to re-orient themselves in such a manner by courts. He observed,
“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.“
The majority opinion delivered by Justices Bhat, Hima Kohli and PS Narasimhahad on Tuesday refused to recognise any right for LGBTQ+ couples to enter into marriages or have civil unions.
All the five judges on the Constitution Bench were unanimous in holding that there is no unqualified right to marriage and that same-sex couples cannot claim it as a fundamental right.
The Court also unanimously turned down a challenge to the provisions of the Special Marriage Act.
However, the minority decisions by CJI Chandrachud and Justice Sanjay Kishan Kaul recognised the right of same-sex couples to enter into civil unions, and deemed unconstitutional the regulations barring unmarried and queer couples from adopting children.
However, the majority did not concur with these aspects.
Justice Bhat, in his majority opinion, disagreed with the reasoning of the CJI.
He said that there had been no recorded instance of the creation or legal recognition of a social institution, like the CJI had called for in his judgment.
“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,” Justice Bhat said.
He also disagreed with calls made in the minority judgment for re-arranging existing social structures by creating a parallel framework for non-heterosexual couples.
This, Justice Bhat said, would require the conception of an entirely different code, which would have to cover State registration of marriage between same-sex 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.
“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,” he concluded.
