| Headnote |
Issues for consideration: The issues were primarily two-fold: (a) the status of the right to marry for LGBTQ+ couples and (b) depending upon the answer to the first, the remedy that must ensue. The petitioners (members of LGBTQ community)asserted that marriage is an evolving social institution, capable of embracing the union of two willing non-heterosexual, queer or LGBTQ+ (used interchangeably) individuals and necessitating state recognition. On the other, the respondents asserted that the institution of marriage rests on certain constant and unchanging premises, the most prominent of which is that it is a heterosexual union. The common ground on which the petitioners claimed relief was that LGBTQ+ persons are entitled to solemnize and register their marriage – in other words, they claimed a right to legal recognition of their unions within the marriage fold. The petitioners relied on fundamental rights to equality and non-discrimination, of dignity and autonomy and of expression and association, and specifically, most petitioners focused on Section 4(c) of the Special Marriage Act, 1954 (SMA) as well as the first and second schedules thereof, to state that particular references to “husband” or “wife” in its provisions are to be read “down”, and a neutral expression needs to substituted, instead. The issue was whether the Special Marriage Act, 1954 is violative of Articles 14, 15, 19, 21, and 25 of the Constitution insofar as it does not provide for the solemnization of marriage between same-sex, gender non-conforming or LGBTQ couples. Some of the prayers also related to the right of such couples to adopt under existing laws in India. The issue was whether Regulations 5(2)(a) and 5(3) read with Schedules II, III and VI of the Adoption Regulations framed by the Central Adoption Resource Authority (CARA) are unconstitutional and ultra vires the Juvenile Justice (Care and Protection of Children) Act, 2015 insofar as they exclude LGBTQ couples from joint adoption. Also, extensive submissions were advanced on the various forms of violence and discrimination that society and the state machinery inflict upon the queer community, and especially queer couples; and directions were sought to obviate such violence and discrimination.Marriage – Conception and significance of – Right to marriage – Status of – If a fundamental right – Conferring legal status for union or relationship – Prerogative of legislature or court:Held [per S. Ravindra Bhat, J. (for himself and Hima Kohli, J.)]: Marriage as an institution is prior to the State, i.e., it precedes it – The status is still, not one that is conferred by the State (unlike the license regime in the US) – The marriage structure exists, regardless of the State, which the latter can utilise or accommodate, but cannot be abolished as a concept – Under this view, terms of marriage are set, to a large extent, independently of the State – Its source is external to the State – That source defines the boundaries of marriage – This implies that State power to regulate marriage does not sit easy with the idea of marriage as a fundamental right – There is no unqualified right to marriage except that recognised by statute including space left by custom – Civil marriage or recognition of any such relationship, with such status, cannot exist in the absence of statute – An entitlement to legal recognition of the right to union – akin to marriage or civil union, or conferring legal status upon the parties to the relationship can be only through enacted law – A sequitur of this is that the court cannot enjoin or direct the creation of such regulatory framework resulting in legal status. [Paras 45, 47 and 149]– Held (per Pamidighantam Sri Narasimha, J.) (Concurring with S. Ravindra Bhat, J.): Marriage is a social institution, and in our country, it is conditioned by culture, religion, customs and usages – The institutional space of marriage is conditioned and occupied synchronously by legislative interventions, customary practises, and religious beliefs – Given the nature of marriage as an institution, the right to choose a spouse and the right of a consenting couple to be recognized within the institution of marriage, cannot but be said to be restricted – There is no unqualified right to marriage guaranteed by the Constitution, that qualifies it as a fundamental freedom – Right to a civil union or an abiding cohabitational relationship conferring a legally enforceable status cannot be situated within Part III of the Constitution of India – The right to marriage is a statutory right, and to the extent it is demonstrable, a right flowing from a legally enforceable customary practice – In the exercise of such a right, statutory or customary, the State is bound to extend the protection of law to individuals, so that they can exercise their choices without fear and coercion – The claim of the right to marry, de-hors the existing statutory framework, is nothing but a claim to create a legally and socially enforceable status – Marriage laws do not stand in isolation, they interact in multifarious ways with succession, inheritance and adoption laws, to name a few – Creation of social institutions and consequent re-ordering of societal relationships are ‘polycentric decisions’, which have “multiplicity of variable and interlocking factors, decisions on each one of which presupposes a decision on all others”, decisions that cannot be rendered by one stroke of the judicial gavel. [Paras 4, 5, 12, 14] – Held (per Dr. Dhananjaya Y. Chandrachud, CJI): There is no universal conception of the institution of marriage, nor is it static – 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 – The State has an interest in regulating the ‘intimate zone’ to democratize personal relationships – 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 personal liberty [Para 340] Held (per Sanjay Kishan Kaul, J.): Marriage as an institution developed historically and served various social functions – It was only later in its long history that it came to be legally recognized and codified – However, these laws regulated only one type of socio-historical union, i.e., the heterosexual union. [Para 8]Held (per Dr. Dhananjaya Y. Chandrachud, CJI): Queerness is a natural phenomenon known to India since ancient times – It is not urban or elite.[Para 340] Held (per S. Ravindra Bhat, J.) (for himself and Hima Kohli, J.) (Concurring): Queerness is a natural phenomenon that is neither urban or elite [Para 2]– Held (per Sanjay Kishan Kaul, J.) (also concurring): Non-heterosexual unions were well-known to ancient Indian civilisation as attested by various texts, practices, and depictions of art – Same-sex unions were recognised in antiquity, not simply as unions that facilitate sexual activity, but as relationships that foster love, emotional support, and mutual care – It would be misconceived to claim that non-heterosexual unions are only a facet of the modern social milieu – There was existence of non-heterosexual unions, despite continued efforts towards their erasure by the heteronormative majority. [Paras 5, 6, 9]LGBTQ community / Queer persons – Rights of – Right to union or relationship – Discriminatory impacts on queer couples – Restrictions – Discrimination on the basis of sexual orientation – Issue whether legal recognition in the form of marriage can be given to non-heterosexual relationships – Judicial review and separation of powers – Court, if vested with the authority to decide the issue –Words and Phrases – “Sex” and “Sexual orientation” – Constitution of India – Arts. 15, 21 and 245 and 246 r/w Entry 5 of List III to Seventh Schedule:Held [per S. Ravindra Bhat, J. (for himself and Hima Kohli, J.)]: The court may feel the wisdom of a measure or norm that is lacking; nevertheless, its role is not to venture into functions which the Constitution has authorised other departments and organs to discharge – It is one thing for this Court, to commend to the State, to eliminate the discriminatory impact of the intersections with laws and publicly administered policies and institutions, upon non-heterosexual couples, and entirely another, to indirectly hold that through a conflation of positive obligations cast on the State, that such individuals’ right to choice to cohabit and form abiding relationships, extends to the right (or some entitlement) to a legally recognised union that must be actualized by State policy/ legislation – Queer persons are not precluded from celebrating their commitment to each other, or relationship, in whichever way they wish, within the social realm – Queer and LGBTQ+ couples too have the right to union or relationship (under Article 21) – “be it mental, emotional or sexual” flowing from the right to privacy, right to choice, and autonomy – This, however, does not extend to a right to claim entitlement to any legal status for the said union or relationship – 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 (members of LGBTQIA+ community) – “Ordering a social institution” or re-arranging existing social structures, by creating an entirely new kind of parallel framework for non-heterosexual couples, would require conception of an entirely different code, and a new universe of rights and obligations – However, equality and non-discrimination are basic foundational rights – The indirect discriminatory impacts in relation to earned or compensatory benefits, or social welfare entitlements for which marital status is a relevant eligibility factor, for queer couples who in their exercise of choice form relationships, have to be suitably redressed and removed by the State – These measures need to be taken with expedition – This court cannot within the judicial framework engage in this complex task; the State has to study the impact of these policies, and entitlements – Union shall set up a high-powered committee chaired by the Union Cabinet Secretary, to undertake a comprehensive examination of all relevant factors – In the conduct of such exercise, the concerned representatives of all stakeholders, and views of all States and Union Territories shall be taken into account [Paras 69, 136, 139 and 149] Held (per Pamidighantam Sri Narasimha, J.) (Concurring): The rights of LGBTQ+ persons, hitherto recognized by the 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 – The question of marriage equality of same sex/LGBTQ+ couples did not arise for consideration in any of the previous decisions of this Court, including the decision in Navtej Singh Johar and NALSA – Consequently, there cannot be a binding precedent on this count – It would not be constitutionally permissible to identify a right to a union or an abiding cohabitational relationship mirroring the institution of marriage – In positively mandating the State to grant recognition or legal status to ‘unions’ from which benefits will flow, the doctrine of separation of powers will be violated. [Paras 4, 16, 17] – Held (per Dr. Dhananjaya Y. Chandrachud, CJI) (Dissenting): This Court is vested with the authority to hear this case – The freedom of all persons including queer couples to enter into a union is protected by Part III of the Constitution – Under Article 32, the Supreme Court has the power to issue directions, orders, or writs for the enforcement of the rights in Part III of the Constitution –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 – The failure of the State to recognise the bouquet of entitlements which flow from a union would result in a disparate impact on queer couples who cannot marry under the current legal regime – The State has an obligation to recognize such unions and grant them benefit under law – In Art.15(1), the word ‘sex’ must be read to include ‘sexual orientation’ not only because of the causal relationship between homophobia and sexism but also because the word ‘sex’ is used as a marker of identity which cannot be read independent of the social and historical context – The right to enter into a union cannot be restricted based on sexual orientation – Such a restriction will be violative of Art.15 – Thus, this freedom is available to all persons regardless of gender identity or sexual orientation – The decisions in Navtej and Justice KS Puttaswamy (9J) recognize the right of queer couples to exercise the choice to enter into a union – This relationship is protected from external threat – Discrimination on the basis of sexual orientation will violate Art.15 – The right to enter into a union is also grounded in Article 19(1)(e) – Union Government, State Governments, and Governments of Union Territories not to discriminate against the freedom of queer persons to enter into union with benefits under law – Assurance of the Solicitor General that the Union Government will constitute a Committee chaired by the Cabinet Secretary for the purpose of defining and elucidating the scope of the entitlements of queer couples who are in unions – The Committee shall inter alia consider the following: (i) enabling partners in a queer relationship (a) to be treated as a part of the same family for the purposes of a ration card; and (b) to have the facility of a joint bank account with the option to name the partner as a nominee, in case of death; and (ii) legal consequences such as succession rights, maintenance, financial benefits such as under the Income Tax Act 1961, rights flowing from employment such as gratuity and family pension and insurance – The report of the Committee be implemented at the administrative level by the Union Government and the governments of the States and Union Territories. [Paras 226, 340] – Held (per Sanjay Kishan Kaul, J.) (Dissenting): Non-heterosexual unions are entitled to protection under our Constitutional schema – Non-heterosexual unions and heterosexual unions/marriages ought to be considered as two sides of the same coin, both in terms of recognition and consequential benefits – This moment presents an opportunity of reckoning with this historical injustice and casts a collective duty upon all constitutional institutions to take affirmative steps to remedy the discrimination – Legal recognition of non-heterosexual unions represents a step forward towards marriage equality – At the same time, marriage is not an end in itself – Our Constitution contemplates a holistic understanding of equality, which applies to all spheres of life – The practice of equality necessitates acceptance and protection of individual choices – The capacity of non-heterosexual couples for love, commitment and responsibility is no less worthy of regard than heterosexual couples – Let this autonomy be preserved, so long as it does not infringe on the rights of others. [Paras 10, 19, 33]LGBTQ / Queer persons – Transgenders and Intersex persons – Entitlement to marriage – Transgender persons in heterosexual persons can marry under existing law – Transgender Persons (Protection of Rights) Act, 2019 – s.3 – Constitution of India – Art.15:Held (per Dr. Dhananjaya Y. Chandrachud, CJI): The gender of a person is not the same as their sexuality – A person is a transgender person by virtue of their gender identity – A transgender person may be heterosexual or homosexual or of any other sexuality – If a transgender person is in a heterosexual relationship and wishes to marry their partner (and if each of them meets the other requirements set out in the applicable law), such a marriage would be recognized by the laws governing marriage –This is because one party would be the bride or the wife in the marriage and the other party would be the bridegroom or the husband – The laws governing marriage are framed in the context of a heterosexual relationship – Since a transgender person can be in a heterosexual relationship like a cis-male or cis-female, a union between a transwoman and a transman, or a transwoman and a cisman, or a transman and a ciswoman can be registered under Marriage laws – The transgender community consists of inter alia transgender men and transgender women – A transgender man has the right to marry a cisgender woman under the laws governing marriage in the country, including personal laws – Similarly, a transgender woman has the right to marry a cisgender man – A transgender man and a transgender woman can also marry – Intersex persons who identify as a man or a woman and seek to enter into a heterosexual marriage would also have a right to marry – Any other interpretation of the laws governing marriage would be contrary to s.3 of the Transgender Persons Act and Article 15 of the Constitution – Transgender persons in heterosexual relationships have the right to marry under existing law including personal laws which regulate marriage – Intersex persons who identify as either male or female have the right to marry under existing law including personal laws which regulate marriage. [Paras 277, 340] Held [per S. Ravindra Bhat, J. (for himself and Hima Kohli, J.)] (Concurring): Transgender persons in heterosexual relationships have the freedom and entitlement to marry under the existing statutory provisions. [Para 149].LGBTQ community / Queer persons – Right of queer persons to adopt children – By s.57(2) of the JJ Act, consent of both the spouses for adoption is necessary (“shall be required”) – In furtherance of s.57(5) which delegates power to prescribe any other criteria, the Central Adoption Resource Authority (CARA) notified regulations with Regulation 5(3) in express terms excluding unmarried couples from adopting by prescribing the condition that the couple must have been in two years of a ‘stable marital relationship’ – Whether the regulations relating to adoption were ultra vires the parent enactment – the JJ Act, and arbitrary for classifying couples on the basis of marital status, for the purpose of joint adoption – Juvenile Justice (Care and Protection of Children) Act, 2015 – Constitution of India – Art. 15 – Adoption:Held [per S. Ravindra Bhat, J. (for himself and Hima Kohli, J.)] (with Pamidighantam Sri Narasimha, J. concurring) (Majority opinion): This is not a case of delegated legislation being ultra vires the parent Act – The legislative choice, of limiting joint adoption only to married couples needs to be understood in the broader context of the JJ Act, and its purpose – which is the best interest of the child are paramount – The parent Act, and delegated legislation, both are clear that a prospective adoptive parent can be a single person (whether unmarried, widower, etc.) and on them, there exists no restriction other than on a single male being barred from adopting a girl child – The restriction of ‘consent’ of partner, applies only in the case of a couple –This is because the child will enter into a family unit – consisting of two parents, as a result of the adoption and will in reality, enjoy the home that is made of both partners – Acceptance, therefore, of the other partner, is imperative; it would not be in the best interest of the child if one of the partners was unwilling to take on the responsibility – Also, it is not a case for reading down or other interpretive construction – All marriages may not provide a stable home, and a couple tied together in marriage are not a ‘morally superior choice’, or per se make better parents – However, the fact that Parliament has made the legislative choice of including only ‘married’ couples for joint adoption (i.e., where two parents are legally responsible), arises from the reality of all other laws wherein protections and entitlements, flow from the institution of marriage – To read down ‘marital’ status as proposed, may have deleterious impacts – Reading down of the provision as sought for would result in the anomalous outcome that heterosexual couples who live together, but choose not to marry, may adopt a child together and would now be indirect beneficiaries, without the legal protection that other statutes offer – making it unworkable – Regulation 5(3) of the CARA Regulations cannot be held void on the grounds urged – At the same time, CARA and the Central Government should appropriately consider the realities of de facto families, where single individuals are permitted to adopt and thereafter start living in a non-matrimonial relationship – In an unforeseen eventuality, the adopted child in question, could face exclusion from the benefits otherwise available to adopted children of married couples – This aspect needs further consideration, for which the court is not the appropriate forum – No matter how much one empathizes with the outcome sought, the means to arriving at such a destination, must also be legally sound, and keep intact, the grand architecture of our Constitutional scheme – It is not that unmarried couples – whether queer or heterosexual– are not capable or suitable, to be adoptive parents – Given the objective of s.57 and other allied provisions of the JJ Act, which is beneficial for children, the State as parens patriae needs to explore every possibility and not rule out any policy or legislative choice to ensure that the maximum welfare and benefits reach the largest number of children in need of safe and secure homes. [Paras 123, 124, 125, 127, 128, 130, 133, 149, 166] – Held (per Dr. Dhananjaya Y. Chandrachud, CJI) (Dissenting): Unmarried couples (including queer couples) can jointly adopt a child – Regulation 5(3), though facially neutral, indirectly discriminates against atypical unions (such as the relationship between non-heterosexual partners) which have not been recognised by the State – Regulation 5(3) is ultra vires the JJ Act, Articles 14, and 15 – Regulation 5(3) is read down to exclude the word “marital” – The reference to a ‘couple’ in Regulation 5 includes both married and unmarried couples as well as queer couples – The principle in Regulation 5(2)(a) that the consent of spouses in a marriage must be obtained if they wish to adopt a child together is equally applicable to unmarried couples who seek to jointly adopt a child – However, while framing regulations, the State may impose conditions which will subserve the best interest and welfare of the child. [Para 340]. Special Marriage Act, 1954 (SMA) – Challenge to SMA and allied laws, on the ground of under classification – Not tenable – Prayer for reading of their provisions in a ‘gender neutral’ manner so as to enable same-sex marriage – Not sustainable – Judicial Review –Scope:Held (per Dr. Dhananjaya Y. Chandrachud, CJI): The SMA was enacted to enable persons of different religions and castes to marry – If the SMA is held void for excluding same-sex couples, it would take India back to the pre-independence era where two persons of different religions and caste were unable to celebrate love in the form of marriage – Such a judicial verdict would not only have the effect of taking the nation back to the era when it was clothed in social inequality and religious intolerance but would also push the courts to choose between eradicating one form of discrimination and prejudice at the cost of permitting another – If this Court reads words into the provisions of the SMA and provisions of other allied laws, it would in effect be entering into the realm of the legislature – This Court cannot either strike down the constitutional validity of SMA or read words into the SMA because of its institutional limitations – This Court cannot read words into the provisions of the SMA and provisions of other allied laws because that would amount to judicial legislation – The Court in the exercise of the power of judicial review must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain – Whether a change should be brought into the legislative regime of the SMA is for Parliament to determine. [Paras 204, 207, 208 and 340] – Held [per S. Ravindra Bhat, J. (for himself and Hima Kohli, J.)] (Concurring) : The challenge to the SMA on the ground of under classification is not made out – Further, the petitioner’s prayer to read various provisions in a ‘gender neutral’ manner so as to enable same-sex marriage, is unsustainable – Exclusion or under inclusion, per se, cannot be characterised as discriminatory, unless the excluded category of persons, things or matters, which are the subject matter of the law (or policy) belong to the same class (the included class) – If one looks at the enacted provisions, especially Sections 19-21 and 21A, Sections 24, 25, 27, 31, 37 and 38, of SMA, there can be no doubt that the sole intention was to enable marriage (as it was understood then, i.e., for heterosexual couples) of persons professing or belonging to different faiths, an option hitherto available, subject to various limitations – There was no idea to exclude non-heterosexual couples, because at that time, even consensual physical intimacy of such persons, was outlawed by Section 377 IPC – So, while the Act sought to provide an avenue for those marriages that did not enjoy support in society, or did not have the benefit of custom to solemnise, it would be quite a stretch to say that this included same sex marriages – Therefore, the challenge to the constitutionality of the statute, must fail – As long as an objective is clearly discernible, it cannot be attacked merely because it does not make a better classification – The original rationale for SMA was to facilitate inter-faith marriages – That reason is as valid today as it was at the time of birthing that law – It cannot be condemned on the ground of irrelevance, due to passage of time – The provisions of SMA are incapable of being “reading down”, or interpreted by “reading up” in the manner suggested by the petitioners – The general pattern of provisions – including the specific provisions, enabling or entitling women, certain benefits and the effect of Sections 19, 20, 21 and 21A of SMA is that even if for arguments’ sake, it were accepted that Section 4 of SMA could be read in gender neutral terms, the interplay of other provisions- which could apply to such non-heterosexual couples in such cases, would lead to anomalous results, rendering the SMA unworkable – Gender neutral interpretation of existing laws would complicate an already exhausting path to justice for women and leave room for the perpetrator to victimise them – A law which was consciously created and fought for, by women cannot, by an interpretive sleight be diluted. [Paras 79, 82, 85, 87, 101, 102, 149] – Held (per Pamidighantam Sri Narasimha, J.) (Also concurring): The constitutional challenge to the Special Marriage Act, 1954 and the Foreign Marriage Act, 1969 must fail – Semantic impossibilities of gender-neutral constructions of the Special Marriage Act, 1954 and the Foreign Marriage Act, 1969. [Para 4]Held (per Sanjay Kishan Kaul, J.): If the intent of the SMA is to facilitate inter-faith marriages, then there would be no rational nexus with the classification it makes, i.e., excluding non-heterosexual relationships – An objective to exclude nonheterosexual relationships would be unconstitutional, especially after this Court in Navtej has elaborately proscribed discrimination on the basis of sexual orientation – Therefore, the SMA is violative of Article 14 of the Constitution – However, there are multifarious interpretive difficulties in reading down the SMA to include marriages between non-heterosexual relationships – Entitlements devolving from marriage are spread out across a proverbial ‘spider’s web’ of legislations and regulations – Tinkering with the scope of marriage under the SMA can have a cascading effect across these disparate laws. [Para 17]LGBTQ community / Queer persons – Discrimination and violence against – Directions sought to obviate the same:Held [per S. Ravindra Bhat, J. (for himself and Hima Kohli, J.)]: The State shall ensure - consistent with the previous judgments in K.S. Puttaswamy, Navtej Johar, Shakti Vahini and Shafin Jahanthat the choice exercised by queer and LGBTQ couples to cohabit is not interfered with and they do no face any threat of violence or coercion – Respondents shall take suitable steps to ensure that queer couples and transgender persons are not subjected to any involuntary medical or surgical treatment – Above directions in relation to transgender persons to be read as part of and not in any manner whittling down the directions in NALSA so far as they apply to transgender persons – This court is alive to the feelings of being left out, experienced by the queer community;however, addressing their concerns would require a comprehensive study of its implications involving a multidisciplinary approach and polycentric resolution, for which the court is not an appropriate forum to provide suitable remedies. [Para 149] – Held (per Pamidighantam Sri Narasimha, J.): One is 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 – 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 care givers including siblings are left out – The impact of some of these definitions is iniquitous and in some cases discriminatory – The policy considerations and legislative frameworks underlying these definitional contexts are too diverse to be captured and evaluated within a singular judicial proceeding – 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. [Para 19] Held (per Dr. Dhananjaya Y. Chandrachud, CJI): The State must enable the LGBTQ community to exercise its rights under the Constitution – Queer persons have the right to freedom from coercion from their natal families, agencies of the State including the police, and other persons – Union Government, State Governments, and Governments of Union Territories, inter alia, were directed (i) that the queer community is not discriminated against; (ii) that there is no discrimination in access to goods and services to the queer community, which are available to the public; (iii) to sensitise the public about queer identity; (iv) to establish hotline numbers for the queer community; (v) to establish and publicise ‘safe houses’ for queer community; (vi) to ensure that inter-sex children are not forced to undergo operations with regard only to their sex; (vii) that 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 – Further, directions to appropriate Government under the Mental Healthcare Act to formulate modules covering the mental health of queer persons in their programmes under Section 29(1) and that programmes to reduce suicides and attempted suicides [envisaged by Section 29(2)] must include provisions which tackle queer identity – Also, directions issued to the police machinery such as (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) not to force queer persons to return to their natal families and (iii) 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. [Paras 339, 340]– Held (per Sanjay Kishan Kaul, J.): There is a need for a separate anti-discrimination law which inter alia prohibits discrimination on the basis of sexual orientation – Such a law should recognize discrimination in an intersectional manner i.e. discrimination must be looked at as a confluence of factors – as identities and individual instances of oppression that ‘intersect’ and create a distinct form of disadvantage. [Paras 27, 28]. |
