In a pivotal move, the Supreme Court of India has directed the Central government, states, and Union Territories to cease discrimination against the queer community. The directive, issued by a five-judge Constitution bench led by Chief Justice DY Chandrachud, mandates that the queer community should not face any discrimination when accessing goods and services. Chief Justice Chandrachud emphasized the need to
“sensitise the public about queer rights“
and advocated for the creation of a hotline and safe houses for queer couples.
Furthermore, the bench, which also included Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, decreed that inter-sex children should not be compelled to undergo operations. The Chief Justice stated,
“No person shall be forced to undergo any hormonal therapy.”
The Court also directed the police to refrain from harassing the queer community based on their sexual identity and cautioned against summoning them to police stations solely for inquiries related to their sexuality.
While the Court stopped short of granting legal recognition to same-sex marriages, it underscored the need for the State to address the discrimination queer couples face, especially the exclusion from welfare measures due to heteronormative definitions in laws. The bench declined to include queer marriages under the Special Marriage Act 1954, stating that interpreting the Act in such a manner would be tantamount to a legislative exercise.
Justice Bhat, in his judgment, highlighted the adverse impact on queer couples due to the State’s recognition of only heterosexual relationships as marriage. He pointed out that the current definitions in schemes such as Provident Fund, Family Pension, and Employees State Insurance exclude their enjoyment to the intended beneficiary, stating,
“This deprivation has to be addressed.”
The Court acknowledged the Centre’s proposal to establish a High-Powered Committee to consider rights for queer couples, short of legal recognition as marriage. Justice Bhat directed the State to ensure that queer and LGBTQ couples’ choice to cohabit is respected and protected from threats of violence or coercion. He further emphasized,
“All necessary steps and measures in this regard shall be taken. The respondents shall take suitable steps to ensure that queer couples and transgender persons are not subjected to any involuntary medical or surgical treatment.”
In conclusion, while the Court recognized the challenges faced by the queer community, it emphasized that addressing these concerns would necessitate a comprehensive, multidisciplinary approach, suggesting that the legislative and executive branches are better suited for this task.
