On Adoption Rights For Queer Couples, 3 Of 5 Supreme Court Judges Say 'No'

The Supreme Court today refused to grant legal recognition for queer marriages in India. The Constitution bench has 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. Along with this, the Supreme Court also declined the right of adoption to queer couples by a 3:2 majority.


India waited with bated breath to know the Supreme Court verdict on legalising same-sex marriage, the decision for which fell short of gaining a majority vote from the five judge bench, led by Chief Justice of India DY Chandrachud. 
Justice Chandrachud and Justice Kaul supported all the rights for queer community, but their stance was overruled by the majority judgment given by the other three judges: Justice Bhatt, Justice Hima Kholi, and Justice Narisimbha.

Chief Justice of India D Y Chandrachud, who was pronouncing its verdict on 21 pleas seeking legal validation for same-sex marriages, said the court can't make law but only interpret it and it is for Parliament to change the Special Marriage Act.

The top court, however, recognised equal rights for queer people and their protection, while calling for sensitisation of the general public so they don't face discrimination.

The apex court, while passing four separate verdicts, was unanimous in holding that there is "no unqualified right" to marriage, and same-sex couples can't claim it as a fundamental right under the Constitution.

The Supreme Court directed the government-formed committee to examine matters related to these rights.

'Authority Exceeded'

Reading out his judgment, Justice Chandrachud observed that the right to enter into a union cannot be restricted on the basis of sexual orientation and ruled that unmarried couples, including queer couples, can jointly adopt a child. He said that the law cannot assume that only heterosexual couples can be good parents and that doing so would amount to discrimination.

Referring to the Central Adoption Resource Authority (CARA) guidelines for adoption, the Chief Justice said the Juvenile Justice Act does not preclude unmarried couples from adopting and the Union of India has also not proved that doing so is in the best interest of the child. "So CARA has exceeded its authority in barring unmarried couples," Justice Chandrachud said.

Stating that differentiating between married couples and unmarried couples has no "reasonable nexus" with the objective of CARA, which is ensuring the best interests of the child, the Chief Justice said, "It cannot be assumed that unmarried couples are not serious about their relationship. There is no material on record to prove that only a married heterosexual couple can provide stability to a child."

Justice Chandrachud also noted that CARA Regulation 5(3) indirectly discriminates against atypical unions. "A queer person can adopt only in an individual capacity. This has the effect of reinforcing the discrimination against the queer community," he said, adding that the CARA circular is violative of Article 15 of the Constitution.

Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth.

Disagreement

While Justice Sanjay Kishan Kaul agreed with the Chief Justice on adoption, Justice Chandrachud said he has a disagreement with the judgment of Justice S Ravindra Bhat.

The Chief Justice said that, contrary to Justice Bhat's judgment, directions in his judgment do not result in the creation of an institution but give effect to the fundamental rights under Part III of the Constitution.

"My learned brother (Justice Bhat) also acknowledges that the State is discriminating against the queer community but does not exercise the powers under Article 32 to alleviate their plight," Justice Chandrachud said. Article 32 confers powers on the Supreme Court to issue orders for the enforcement of fundamental rights. 

Majority View

In his judgment, which is the majority judgment since Justices Hima Kohli and PS Narasimha agreed with it, Justice Bhat said he disagreed with the Chief Justice on the right of queer couples to adopt and that he had certain concerns. He said that Regulation 5(3) of CARA could not be held unconstitutional. 


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