The Delhi High Court on Thursday questioned that if same sex partners have the right to relationship and live together, why should they be denied the choice to give medical consent for each other.

Justice Swarana Kanta Sharma made the remark while questioning the Central Government for failing to reply, despite lapse of an year, to a plea seeking framing of guidelines to recognise non-heterosexual partner of a patient as their medical representative and to give consent in medical situations.

The plea has been filed by one Arshiya Takkar. In the alternative, she has sought a declaration that a medical power of attorney given in advance by a patient to their non-heterosexual partner must be sufficient to permit such partner to act as the duly constituted medical representative at the time of medical treatments or medical emergencies.

During the hearing today, Senior Advocate Saurabh Kirpal appearing for the petitioner said that notice was issued in the matter as back as in July last year but no counter affidavit has been filed yet.

Referring to various authorities on the issue, Kirpal submitted that the petitioner's choice regarding medical treatment ought to be protected.

He said that even though the Supreme Court has held that there cannot be same sex marriage, but the same ruling recognizes that there is a right of a relationship.

“You can't simply say you two now live together but you can't do anything together. And then we will recognise your right to live in relationship, we will not put you in jail but you can't do anything else. That is not mandate of Article 21,” he said.

On this, Justice Sharma remarked: “How about this. The law recognizes live in relationship between a man and a woman. Why will it not allow a live in relationship between a man and a man? Let's just say what they have to say. It will be very interesting.”

“Have you (Centre's counsel) taken any decision on this?…. See there is a problem. I will tell you. As Justice Bhatt also wrote. And some other judgments also mentioned. Whenever a person will choose a path which is not taken by the majority, they will be targeted or looked down upon or not looked down upon or not accepted by other people. When you are not accepting a few people, I have many cases in which families give them up. So the family will say we will not accept. Now when you say that near relations are not available, they are available. But this person wants to make a choice because I am living with this person considering my partner as a man or a woman do, therefore I don't need my family to take a decision. When you say they are not available, they are available but they don't want them to take a decision.”

The judge also remarked that the plea concerned a limited prayer of giving consent in medical situations, which will also bring into its ambit people who are divorced but are living with some other person without being married, a woman living with a woman whose family had given her up.

“I was just wondering. If i pass an order in this regard, you don't need to change anything. Uske liye apko bas safeguard hi toh karna hain. Uske liye jo Madras High Court ka ek judgment hain, aap wo bhi soch sakte hain. Aap koi aur achi cheez bhi soch sakte hain. Ye toh boht hi choti si cheez hain. Isko kyu nahi kar skte?,” the judge remarked.

The Court said that the matter will be decided next month itself as it is an issue of importance and directed the Central Government to file a counter affidavit within a week.

As per the petition, Clause 7.16 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 mandate consent for medical procedures or treatment from a "husband or wife, parent or guardian in the case of minor, or the patient himself".

The plea submits that the provision lacks of explicit recognition of partners in a union and renders the Petitioner effectively powerless to make critical medical decisions for her partner, a right which is readily available to heterosexual partners or couples.

It has been contended that the situation leads to a “disparate impact” and violates the constitutional obligation to acknowledge non-heterosexual unions under Part III of the Constitution of India.

“It is contended that the prevailing legal and regulatory classification, by failing to include or recognize same-sex partners for medical decision-making, lacks a reasonable nexus with any legitimate state objective and is manifestly arbitrary, thus violating Article 14 of the Constitution of India,” the plea said.

Calling it “systemic exclusion”, the plea contends that the situation constitutes discrimination on the ground of sex, violating Article 15 of the Constitution of India, as sexual orientation is recognized as being covered under the meaning of "sex" per the judgment in Navtej Johar v. Union of India.

The petitioner has submitted that discriminatory classification based on sexual orientation, by privileging heterosexual relationships, lacks any reasonable basis.

“More broadly, it violates the fundamental right to life and personal liberty under Article 21 of the Constitution of India, which includes the right to live with dignity and autonomy in personal relationships, such as caring for a chosen partner in crucial medical decisions,” the plea states.

Title: ARSHIYA TAKKAR v. UNION OF INDIA & ORS