Marriage Equality Case : Conclusions & Directions Of Supreme Court Judgments

Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat and Justice PS Narasimha pronounced separate judgments.In terms of the reportable judgment, the Chief Justice of India issued following directions and conclusions:a. The Union Government, State Governments, and Governments of Union Territories are directed to:i. Ensure that the queer community is not discriminated against because of their gender identity or sexual orientation;ii. Ensure that there is no discrimination in access to goods and services to the queer community, which are available to the public;iii. Take steps to sensitise the public about queer identity, including that it is natural and not a mental disorder;iv. Establish hotline numbers that the queer community can contact when they face harassment and violence in any form;v. Establish and publicise the availability of ‘safe houses’ or Garima Grehs in all districts to provide shelter to members of the queer community who are facing violence or discrimination;vi. Ensure that “treatments” offered by doctors or other persons, which aim to change gender identity or sexual orientation are ceased with immediate effect;vii. Ensure that inter-sex children are not forced to undergo operations with regard only to their sex, especially at an age at which they are unable to fully comprehend and consent to such operations;viii. Recognize the self-identified gender of all persons including transgender persons, hijras, and others with sociocultural identities in India, as male, female, or third gender. No person shall be forced to undergo hormonal therapy or sterilisation or any other medical procedure either as a condition or prerequisite to grant legal recognition to their gender identity or otherwise;b. The appropriate Government under the Mental Healthcare Act must formulate modules covering the mental health of queer persons in their programmes under Section 29(1). Programmes to reduce suicides and attempted suicides (envisaged by Section 29(2)) must include provisions which tackle queer identity;c. The following directions are issued to the police machinery:i. There shall be no harassment of queer couples by summoning them to the police station or visiting their places of residence solely to interrogate them about their gender identity or sexual orientation;ii. They shall not force queer persons to return to their natal families if they do not wish to return to them;iii. When a police complaint is filed by queer persons alleging that their family is restraining their freedom of movement, they shall on verifying the genuineness of the complaint ensure that their freedom is not curtailed;iv. When a police complaint is filed apprehending violence from the family for the reason that the complainant is queer or is in a queer relationship, they shall on verifying the genuineness of the complaint ensure due protection; andv. Before registering an FIR against a queer couple or one of the parties in a queer relationship (where the FIR is sought to be registered in relation to their relationship), they shall conduct a preliminary investigation in terms of Lalita Kumari v. Government of U.P1, to ensure that the complaint discloses a cognizable offence. The police must first determine if the person is an adult. If the person is an adult and is in a consensual relationship with another person of the same or different gender or has left their natal home of their own volition, the police shall close the complaint after recording a statement to that effect.Conclusionsa. This Court is vested with the authority to hear this case. Under Article 32, this Court has the power to issue directions, orders, or writs for the enforcement of the rights in Part III;b. Queerness is a natural phenomenon known to India since ancient times. It is not urban or elite;c. There is no universal conception of the institution of marriage, nor is it static. Under Articles 245 and 246 of the Constitution read with Entry 5 of List III to the Seventh Schedule, it lies within the domain of Parliament and the state legislatures to enact laws recognizing and regulating queer marriage;d. Marriage has attained significance as a legal institution largely because of regulation by the state. By recognizing a relationship in the form of marriage, the state grants material benefits exclusive to marriage;e. The State has an interest in regulating the ‘intimate zone’ to democratize personal relationships;f. The issue of whether the Constitution recognizes the right to marry did not arise before this Court in Justice KS Puttaswamy (9J), Shafin Jahan , and Shakti Vahini;g. The Constitution does not expressly recognize a fundamental right to marry. An institution cannot be elevated to the realm of a fundamental right based on the content accorded to it by law. However, several facets of the marital relationship are reflections of constitutional values including the right to human dignity and the right to life and...

Marriage Equality Case : Conclusions & Directions Of Supreme Court Judgments

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