Queerness Not An Urban, Elitist Concept: Supreme Court Declares

Stating that the court could not step into the domain of the legislature, the Supreme Court today refused to grant legal recognition for queer marriages in India. The Constitution bench pronounced four judgements– written by CJI DY Chandrachud, Justice SK Kaul, Justice Ravindra Bhat and Justice PS Narasimha respectively, with Justice Hima Kohli concurring with the view of Justice Bhat. 

In his judgement, CJI DY Chandrachud stated that queerness was not an urban or elite concept. He stated that homosexuality or queerness was not a concept restricted to the upper classes of the society and that people may be queer regardless of them being from villages, urban cities, or semi-urban cities. He added that people also may be queer regardless of their caste and economic background. "It is not only the English speaking man who lives in a metropolitan city with a white collar job who can lay claim to being queer, but it can also be a woman who works in an agricultural farm", he remarked. He added that to imagine that queer people exist only in urban and elite spaces is to "erase" them. This was also concurred with Justice Kaul. 

While Justice Bhat, speaking for himself and Justice Kohli, disagreed with CJI DY Chandrachud's judgement on certain aspects (such a right to civil union and adoption), on the issue of queerness not being elitist, his judgement concurred with that of the CJI, stating that "Queerness is neither urban nor elitist..."

The judgment authored by CJI Chandrachud mentioned that some of the petitioners in the case are hailing from rural and semi-urban regions. There are petitioners from Durgapur, Varanasi, Muktsar (Punjab), Vadodara. Some petitioners were from working class backgrounds.

CJI Chandrachud wrote : 

"...expressions of queerness may be more visible in urban centres for a variety of reasons. For one, cities may afford their inhabitants a degree of anonymity, which permit them to live their true lives or express themselves freely. This may not always be possible in smaller towns or villages, where the families or communities of queer persons may subject them to censure and disapprobation, or worse.96 The experiences of queer persons may also be more visible in urban spaces because such persons have greater access to the various resources required to make one’s voice heard. This only means that the marginalized are yet to be heard when they speak and not that they do not exist. This is not to say that society does not inflict violence upon the LGBTQ community in cities but only to indicate potential reasons for their increased visibility in cities. In conclusion, queerness is not urban or elite. Persons of any geographic location or background may be queer."

Justice Bhat (along with Justices Kohli and Narsimha) also agreed with the CJI's views. "We have no hesitation in agreeing that queerness is a natural phenomenon that is neither urban or elite.." Justice Bhat wrote.

Justice Kaul stated in the judgment that "non-heterosexual unions are well-known to ancient Indian civilisation as attested by various texts, practices and depictions of art." 

It may be recalled that in its second counter affidavit, the Centre, while contending that marriage was "an exclusively heterogenous institution", had argued that those seeking marriage equality in India merely represent "urban elitist views for the purpose of social acceptance" and that the popular will of people was that marriage be recognised solely amongst heterosexual individuals. During the hearings too, the Supreme Court had disapproved of the Centre's stand and remarked that it could not dub homosexuality and the idea of marriage equality as an "urban elitist" concept, especially in the absence of any data to back this claim. Senior Advocate KV Vishwanathan had shared the inspiring journey of his client, Zainab Patel, a transgender woman who was disowned by her family and forced to beg on the streets. Senior Advocate Jayna Kothari had also joined in to speak of her client Akkai Padmashali who was also thrown out of her house at the age of 15 years. Both the counsels had stated that it was incorrect to call their clients' views as those of the "urban elitists".

Today's judgement has also declined the right of adoption to queer couples by a 3:2 majority. Further, the right of a civil union to queer couples has been declined by a 3:2 majority as well.

The CJI, in his judgement, asserted that queer couples had a right to choose their partners and also had the right to recognition of that union. He stated that the failure to recognize such associations would result in discrimination against queer couples. The CJI added that for the full enjoyment of such relationships, unions need recognition. As per the CJI's judgement, the right to enter into a union is grounded in Article 19(1)(e) as well as Article 21 as choosing a life partner is an integral part of choosing one's course of life. Further, he has stated that material benefits and services flowing to heterosexual couples and denied to queer couples would be a violation of their fundamental right. Justice SK Kaul has concurred with the same. However, Justice Bhat and Justice Kohli, in their judgement have disagreed with the view of the CJI and have stated that when the law is silent, Article 19(1)(a) does not compel the State to enact a law to facilitate that expression. Further, the two judges have cited difficulties in creating through a judicial diktat, a right to civil union. Justice PS Narasimha has agreed with Justice Bhat's judgement and stated that it would not be constitutionally permissible to recognize a right to civil union mirroring a marriage.

Other stories about the judgment can be read here.

Case Title: Supriyo v. Union of India | Writ Petition (Civil) No. 1011 of 2022 + connected matters

Citation : 2023 LiveLaw (SC) 900

Click here to read the judgment