Supreme Court judge Justice PS Narasimha said that the State is bound to afford LGBTQ+ persons full protection of the law in case their rights which have been recognised by the top court, are in peril.
He said the exercise of codification of regulations governing marriage and family, not always accurate and many a time exclusionary, was the product of the colonial desire to mould and reimagine social institutions.
Justice Narasimha said, “The rights of LGBTQ+ persons, that have been hitherto recognised by this Court, are the right to gender identity, sexual orientation, the right to choose a partner, cohabit and enjoy physical & mental intimacy. In the exercise of these rights, they have full freedom from physical threat and from coercive action, and the State is bound to afford them full protection of the law in case these rights are in peril.”
Justice Narasimha, who penned a separate verdict while agreeing with the views of Justice S Ravindra Bhat, said that in India, the “multiverse” of marriage as a social institution, is not legally regulated by a singular gravitational field.
“Until the colonial exercise of codification of regulations governing marriage and family commenced, the rules governing marriage and family were largely customary, often rooted in religious practice. This exercise of codification, not always accurate and many a time exclusionary, was the product of the colonial desire to mould and reimagine our social institutions,” he said.
Justice Narasimha, who was part of the five-judge bench also comprising Chief Justice DY Chandrachud, Justices SK Kaul, and Hima Kohli, said, what is undeniable is that the colonial codification produced some reformatory legislative instruments, ushering in some much-needed changes to undo systemic inequalities.
“The constitutional project that we committed ourselves to in the year 1950, sought to recraft some of our social institutions and within the first half decade of the adoption of the Constitution, our indigenous codification and reformation of personal laws regulating marriage and family was underway,” he said.
Agreeing with Justice Bhat, he said there is no unqualified right to marriage guaranteed by the Constitution that qualifies it as a fundamental freedom.
“In my considered opinion, the institutional space of marriage is conditioned and occupied synchronously by legislative interventions, customary practices, and religious beliefs.
“The extant legislative accommodation of customary and religious practices is not gratuitous and is to some extent conditioned by the right to religion and the right to culture, constitutionally sanctified in Articles 25 and Article 29 of the Constitution of India,” he said.
Justice Narasimha also said, “I am not oblivious to the concerns of the LGBTQ+ partners with respect to denial of access to certain benefits and privileges that are otherwise available only to married couples.”
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He said the general statutory scheme for the flow of benefits, gratuitous or earned, property or compensation, leave or compassionate appointment, proceed on a certain definitional understanding of partner, dependant, caregiver, and family.
“In that definitional understanding, it is no doubt true that certain classes of individuals, same-sex partners, live-in relationships and non-intimate caregivers including siblings are left out. The impact of some of these definitions is iniquitous and in some cases discriminatory,” he said.
Justice Narasimha said that the policy considerations and legislative frameworks underlying these definitional contexts are too diverse to be captured and evaluated within a singular judicial proceeding, and suggested a legal deliberation in the matter.
“I am of the firm belief that a review of the impact of legislative framework on the flow of such benefits requires a deliberative and consultative exercise, which exercise the legislature and executive are constitutionally suited, and tasked, to undertake,” he said.
