The petition asks the Delhi High Court to recognise a non-heterosexual partner as a patient’s medical representative, able to give consent when the patient cannot. The Centre’s affidavit says that where a competent adult has nominated such a partner, there is no medical or ethical reason to exclude them on account of sex, gender, sexual orientation or the absence of a formal marriage, and that this can be read into the existing framework subject to safeguards. Nothing has been decided.
New Delhi: The Central Government has told the Delhi High Court that a competent adult should be permitted to nominate their partner, including a partner in a non-heterosexual or queer relationship, to take healthcare decisions on their behalf if they later become incapacitated, and that such an approach can be accommodated within the existing legal and ethical framework, subject to applicable law and appropriate safeguards [Arshiya Takkar v. Union of India and Others].
The position was set out in an affidavit filed by the National Medical Commission, alongside the Union Ministry of Health and Family Welfare, in a petition seeking guidelines to recognise the non-heterosexual partner of a patient as their medical representative for the purpose of giving consent.
What the petition seeks
The petition, filed by Arshiya Takkar, asks the Court to frame guidelines recognising a patient’s non-heterosexual partner as a medical representative competent to give consent in medical situations. In the alternative, it seeks a declaration that a medical power of attorney given in advance by a patient to such a partner is sufficient to allow the partner to act as the duly constituted medical representative at the time of treatment or in an emergency.
The petition’s grievance is directed at Clause 7.16 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, which contemplates consent being obtained from the patient, or in specified circumstances from a spouse, parent or guardian. The absence of any explicit recognition of a partner in a union, the petition contends, leaves a person effectively powerless to make critical medical decisions for their partner, a right available to heterosexual couples, producing what it calls a disparate impact and a systemic exclusion. It frames this as discrimination on the ground of sex under Article 15, relying on the recognition in Navtej Singh Johar v. Union of India that sexual orientation falls within the meaning of “sex”, and as a violation of the right to live with dignity and autonomy under Article 21.
The Centre’s position
The affidavit opens by recording that the Centre recognises and respects the constitutional guarantees of dignity, privacy, autonomy, equality and individual choice available to all persons, including members of the LGBTQIA+ community, and that its response is not intended to question the constitutional protection available to persons in queer relationships.
On the substance, the Centre’s stated view is that where a competent adult has nominated or otherwise authorised a partner to act on their behalf in the event of incapacity, there is no medical or ethical rationale for excluding that person merely on account of the sex, gender or sexual orientation of the partners, or because their union does not fall within the conventional understanding of marriage. It described such a step as a logical and tailored extension of an existing principle:
“…permitting a competent adult to nominate his/her partner, including a partner in a non-heterosexual/ queer relationship, to take medical decisions on his/her behalf in the event of incapacity would constitute a logical and tailored extension of the same principle, while respecting patient autonomy and ensuring continuity of care, subject to appropriate safeguards and the applicable law.”
The affidavit states that the reliefs sought are substantially capable of being accommodated within the existing legal and ethical framework, and that relationships of care, dependence and mutual responsibility are not necessarily confined to formally recognised marital or blood relationships.
Reading Clause 7.16 harmoniously
Rather than proposing an amendment, the Centre suggested that the existing regulation be read purposively. Clause 7.16, it said, may be read harmoniously with the existing legal framework so as not to exclude, merely on account of sex, gender, sexual orientation or the absence of a formally recognised marital relationship, a partner duly nominated or authorised by a competent adult patient to take healthcare decisions on their behalf upon subsequent incapacity.
It went further to address the situation where no prior nomination exists:
“In the absence of such prior nomination, the partner may also be considered, in appropriate circumstances and subject to applicable law, verification and safeguards, as a person in a relationship of care/ next friend for purposes of medical decision-making.”
Such an interpretation, the affidavit said, would preserve patient safety and due process while advancing the constitutional values of autonomy, dignity, equality and non-discrimination. The Centre urged that the petitioner’s prayers be examined in light of the existing statutory provisions, judicial pronouncements and government policy, with medical decision-making ultimately depending on the nature of the treatment, the circumstances, the patient’s wishes and the applicable law.
ALSO READ: Supreme Court Rejects Review Pleas on 2023 Verdict Against Same-Sex Marriage Legalization
The Court’s earlier observation
The affidavit follows a pointed question the Court had put to the Centre at an earlier hearing. Last month, Justice Swarana Kanta Sharma had asked why, if same-sex partners have the right to be in a relationship and to live together, they should be denied the choice to give medical consent for each other. The present affidavit is, in substance, the Centre’s response to that line of inquiry.
Why it matters
The significance lies less in any final ruling, of which there is none yet, than in the position the Government has chosen to take. On the broader question of legal recognition of same-sex unions, the Centre has resisted change, and the Supreme Court declined in 2023 to read marriage equality into the statute. Against that backdrop, an affidavit accepting that a nominated queer partner should be able to make medical decisions, and that the existing rules can be read to permit it, is a notable narrowing of the dispute to a discrete and practical question of patient autonomy.
The framing the Centre adopted is worth attention. It did not rest the concession on recognising the relationship as such, but on the patient’s own act of nomination: the decisive fact is that a competent adult has chosen a person to speak for them, and the law’s task is to give effect to that choice rather than to inquire into the nature of the union. That keeps the proposition within the settled territory of individual autonomy and advance directives, and avoids the contested terrain of marriage, which is likely why it could be offered without the Government departing from its stance elsewhere.
Two limits should be kept in view. The Centre’s position is that the relief can be accommodated by a purposive reading of Clause 7.16, not that a new right is being created, and it is hedged throughout with references to applicable law, verification and safeguards; how those safeguards are framed will matter as much as the principle. And this is the stand of one party in a pending matter. The petitioner’s prayers are yet to be decided, the Court has recorded no conclusion, and what a harmonious reading of the regulation will finally permit is for the judgment, not the affidavit, to settle.
Case Title: Arshiya Takkar v. Union of India and Others
Court: High Court of Delhi
Before: Justice Swarana Kanta Sharma (as recorded at the earlier hearing)
Filing: Affidavit of the National Medical Commission, with the Union Ministry of Health and Family Welfare
Status: Petition pending. The Centre’s affidavit records its position; no finding has been made and the reliefs remain to be decided.