[This is a guest post by Hardik Choubey.]

The Supreme Court’s (SC) judgment in Supriyo @ Supriya Chakraborty v Union of India (Marriage Equality Judgment) has been discussed on this blog over multiple essays. However, one facet of the judgment which has not been given much attention is the court’s decision to uphold the Central Adoption Resource Authority’s (CARA) Adoption Regulations, 2017.

CARA is a statutory body created through the Juvenile Justice Act, 2015 (‘The Act’ or ‘JJ Act’). It is empowered under Section 57 to frame adoption regulations to provide eligibility criteria for Prospective Adoptive Parents (PAPs). The petitioners had assailed the adoption regulations on two grounds: first, that the 2017 regulations went beyond the powers granted to CARA under the JJ Act and second, that the distinction created for the purpose of adoption between married couples and unmarried couples under the regulations was discriminatory and violative of Art. 14 and 15 of the Constitution (see here).

The majority (Bhat, J. joined by Kohli, J. and Narasimha, J.) held the regulations to be constitutionally valid as they did not find them to be violative of the constitution or beyond the scope of the JJ Act. The minority (Chandrachud, CJ by himself – as Kaul, J. makes no reference to the issue) found CARA Adoption Regulation 5(2)(a) and 5(3) to be unconstitutional for three reasons: (1) Exceeding the scope of the JJ Act, (2) Violating Article 14, and (3) Indirectly discriminating against atypical unions in a manner impermissible under Article 15.

In this article, I argue that the majority’s reasoning to reach its conclusion is erroneous on multiple grounds.  First, it impermissibly frames the scope of the governing provision in a manner which ensures that the regulations would be construed in a way which allows discrimination against non-heterosexual unions. Second, it justifies this discrimination-enabling scope of the provision by relying on the paucity of allied benefits that LGBTQ+ couples face and, Third, that it once again finds discrimination against non-heterosexual couples but fails to remedy it. For the reference of the reader, Section 57 of the Act and the relevant parts of regulations have been reproduced below:

Discerning the Scope of Section 57, JJ Act: Conditioning the Question to Pre-determine the Answer

CJ Chandrachud’s opinion follows a systematic analysis of Section 57, where he first acknowledges that the provisions of the act are intended to ‘promote the best interest of the child and ensure their development’ and that s.57’s ascription of an eligibility criteria for PAPs would be an extension of that principle (¶298). To that effect, he holds that s.57(2) does not narrow the types of couples who can adopt a child, but rather, it prescribes that if the couple in question is a ‘married couple,’ the consent of both the spouses would be required for the adoption. In that manner, the scope of s.57(2) was not to exclude unmarried couples, but to provide for a statutory requirement specific to married couples, in order to ensure that the child enters into a marital home where both the parents consented to their adoption, as it would be in the best interest of the child.

Justice Bhat’s opinion, however, rejects this reading of the provision. Instead, he argues that even though the word ‘couple’ is not preceded by ‘married’, the presence of the noun ‘spouse’ later on in s.57(2) makes it clear that the section ‘intends joint adoption only to married couples’ (¶122 in Bhat, J.’s Opinion). He argues that the presence of the word ‘spouse’ necessitates that the meaning of ‘couple’ in the section be narrowed to ‘married couple’. The result of narrowing down the word ‘couple’ to mean ‘married couple’ is that unmarried couples are excluded from jointly adopting a child. Justice Bhat himself later finds such an exclusion to be impermissible indirect discrimination against non-heterosexual couples; however, he shifts the responsibility of eliminating such discrimination upon the political branches (¶131, 132).

It is hard to escape the fact that the discrimination that non-heterosexual couples face in this instance is a result of the interpretation to the statute that Justice Bhat bestowed. It is a clear rule of statutory interpretation that when there are two possible constructions of a statute, where on one construction the statute will become ultra vires the powers of the legislature, the interpretation which would sustain the validity of the provision should be preferred that the legislature is presumed not to have intended an excess of its jurisdiction (see Olga Tellis v BMC ¶44; GP Singh, Principles of Statutory Interpretation, at Page 444-445). The statutory meaning ascribed by the Chief Justice to s.57, JJ Act ensured that the statute was construed in a plausibly wide manner, something which the majority refused to do.  

For their assertion, the majority relies on an interpretive principle (noscitur a sociis) which stipulates that ‘meaning of a word should be known from its accompanying or associating words’. However, this entire exercise is an erroneous application of that principle itself. First, the principle of noscitur a sociis is a mere principle of construction which has no application in cases where an otherwise wider meaning ensures that the statute remains effective and operative and an application of the principle would make the statute ultra vires (See GP Singh, Principles of Statutory Interpretation, at Page 380; State of Bombay v Hospital Mazdoor Sabha, ¶9). Second, provisions have to be read as a whole in order to give them their intended effect (see here). Section 57 as a whole was admittedly intended to promote the best interest and development of the child. Its scheme allows for unmarried persons of any orientation to adopt a child and makes no facial distinction as to whether the family unit the child would enter into is a “typical” or “atypical” one. It does not follow that the mere usage of a singular noun would control the whole provision so as to exclude what are considered ‘atypical family units.’ Thus, the Chief Justice’s interpretation of s.57(2), where it was squarely construed as part of a provision which governs a specific statutory requirement as to married couples, in pursuance of the intent of the provision as a whole, was the only practicable construction.

However, as I will show below, the construction that the majority preferred is justified in the opinion on the basis of an unrelated state purpose, that of ‘allied entitlements of marriage’. These benefits were the very point of contention in other prayers of the petitioners and interestingly, a very similar approach to those prayers was taken in erecting artificial barriers to the exercise of joint-adoption by non-heterosexual couples.

Erroneously linking exercise of joint-adoptions to entitlements emanating from marriage

Once the majority had construed a reading of the JJ Act which essentialized marriage as a pre-condition to joint-adoption by couples, Justice Bhat’s opinion holds that the adoption regulations are intra vires their parent statute. This is because, in his opinion, when a couple adopts a child, the legal benefits flowing from marriage (such as maintenance, succession, custody, etc.) determine the rights of the child towards their parent and vice-versa. Since there don’t exist similar legal regimes for unmarried couples, the law would be unable to guarantee the rights of the child in the case of breakdown of such a couple. The majority holds that since this would not be in the best interest of the child, the Adoption Regulations provide a barrier against such a possibility and thus have a nexus with the object of the act (¶125-126).

However, a mere perusal of the statutory scheme of the JJ Act and other regimes regulating child-parent relations would have countered the assertions of the majority. Section 63 of the JJ Act creates a legal fiction wherein the adopted child becomes the child of the adopting parent(s) as if the child were born to them. Indian law does not make a distinction as to maintenance provisions between a child and their parent(s) on the basis of the parent’s status as a married or unmarried couple: this can be discerned through s.125 CrPC, s.20, Hindu Adoption and Maintenance Act, etc. Similarly, with respect to succession, an adopted child is treated as a legitimate child without regard to the marital status of the parent(s). Further, as the Chief Justice points out in his opinion, this legal relationship between the child and parent(s) is not altered in the case of breakdown of relationship of the parents, meaning that the interests of the child would be equally protected without regard to the marital status of the parents (¶338, Chandrachud, CJ’s Opinion).

Thus, the force of the argument of the majority in holding the regulations intra vires the object of the JJ Act (which was to secure ‘the best interests of the child’) is misconceived. Further, in any case, the majority does not deal with or justify why Regulation 5(3)’s emphasis on ‘two years of stable marital relationship’ is within the scope of the object of the act.

A consistent theme: No remedy for discrimination

Earlier posts on this blog have criticized the court’s approach to discrimination in the marriage equality judgment, where the court has found impermissible discrimination against non-heterosexual couples- but refused to remedy it (see here and here). However, the majority’s approach to the exercise of joint-adoptions by non-heterosexual couples stands on a different footing still.

In Supriyo, the court had a judicially sound path to guarantee an ancillary benefit that many petitioners had dreamed of, in hopes of leading a regular life in India (For one such example, see Amburi Roy’s Petition). However, the majority harkened back to an erroneous application of a principle of interpretation, which led to the denial of this basic entitlement to non-heterosexual couples. Further, even the majority found that the scheme of the act and CARA regulations, as they had interpreted them, indirectly discriminated against non-heterosexual couples (¶131, 132, Bhat, J’s Opinion). However, the majority refused to act in a manner which would either put an end to such discriminatory action (by striking down the regulations and harmoniously reading the act, as the CJ had done) or provide any alternative relief. This consistent theme in the majority’s reasoning is one seldom seen in other cases relating to discrimination at the SC (see here). This might be a regressive trend which shows a dismissive attitude against supposed ‘miniscule minorities’, though it is hoped that is not the case.

The case for joint adoption rights was distinct in one manner from the plea for marriage equality, in the sense that multifarious distinct regimes were not really required to be interfered with. However, in a near-mechanical approach, one quite similar to the method applied towards the challenge to the SMA, the court itself shut the door to the exercise of joint adoption by atypical unions and then abnegated that responsibility to an indeterminate promise by an uncongenial political establishment.

Conclusion

It has been my attempt to show that the path taken by the majority in denying joint-adoption rights to non-heterosexual couples was the wrong one, particularly when compared to the one envisioned in the Chief Justice’s Opinion. The CARA Regulations and Circular clearly exceed the scope of the act and the constitution, and should have been struck down as such.

However, many can yet hope that legislative reform provides the right to adopt to non-heterosexual couples. A parliamentary standing committee report had suggested a ‘new legislation’ rationalising the adoption provisions under the JJ Act and the Hindu Adoption and Maintenance Act and recommended that the benefits of the provisions be extended to the LGBTQ Community [At 29]. It is wished that such a development is holistic in nature and happens soon.