Law is often hailed as the harbinger of social change and there are numerous examples to support this assertion Loving v. Commonwealth of Virginia1, Lawrence v. Texas2, National Legal Services Authority v. Union of India,3 etc. and so, it is not a matter of surprise that the words of the Supreme Court mean as much as they do. A 2-Judge Bench of the Supreme Court delivered a judgment4, which the authors would argue further ahead in this paper, is a landmark judgment, and explore the effect the words recorded therein would/could have on the Indian societal and legal landscape.
The struggle for women’s equality has gone through many ups and downs and at one end, considerable headway has been made, but, in a few cases on the other hand, laws, legal provisions and judgments have highlighted problems and gaps5 in implementation, which also require considerable attention to be adequate and effectively addressed. The struggle for LGBTQ+ rights has also gathered steam over the recent years and the first steps taken in that direction have been encouraging thus far.
Deepika Singh v. Central Administrative Tribunal6 arose out of decisions by the appellant's employer, the Post Graduate Institute of Medical Education and Research (PGIMER), its challenge at the Central Administrative Tribunal, Chandigarh, and a Division Bench of the Punjab and Haryana High Court7 upholding the same.
The case at the Bar was, that the appellant, who already had on her record, two children (her husband's from a previous marriage) upon giving birth to her first child, applied for maternity leave which was rejected on the ground that she had already availed childcare leave for her other two children. So, under the Civil Service (Leave) Rules, 1972 (the Rules), she was denied such leave and the time that she did take off was treated as earned leave, medical leave, half-pay leave, and extraordinary leave. This leave of approximately six months was not counted towards her entitlement for increments, hence this.
The reasoning adopted by the Bench was that of purposive construction of a beneficial statute. Chandrachud, J., likened the present situation to the Maternity Benefit Act, 19618 (the MBA, 1961), for it throws light on the intent of the legislature to enact a similar, “cognate law”. It is then stated, referring to MCD v. Female Workers (Muster Roll)9 where benefits of the MBA, 1961 were extended to daily wagers employed with the Municipal Corporation of Delhi, that both, this Act and the Rules have been enacted to further constitutional obligations under Articles 1410, 1511, 3912, 4213 and 4314 of the Constitution of India, as also those under international law, under Article 25(2) of the Universal Declaration of Human Rights15 and Article 11 under the Convention on the Elimination of All forms of Discrimination Against Women.16
Touching upon gendered roles in society, it was held that the availing of childcare leave by the appellant could not deprive her of the right to maternity leave.
Poignant observations follow. The traditional definition of “family”, of it being an unchanging unit and, one, the resultant incomprehension of circumstances/events that may forever alter this structure, two, the blanket ignorance of any unit that does not conform to this definition, is highlighted. Profoundly, the judgment reads as under:
“Familial relationships may take the form of domestic, unmarried partnerships or queer relationships. A household may be a single parent household for any number of reasons, including the death of a spouse, separation, or divorce. Similarly, the guardians and caretakers (who traditionally occupy the roles of the ‘mother’ and the ‘father’) of children may change with remarriage, adoption, or fostering. These manifestations of love and of families may not be typical but they are as real as their traditional counterparts. Such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation.”17
Chandrachud, J., then says that the letter of the law should not be the reason or [that], it should not be used to disadvantage atypical households. These words, understood in all their import, will have a wide impact. There are many laws under the galaxy of laws in the universe of the Constitution, which regulate or have an effect on familial relationships. Quite directly, with the definition of family being recognised in this expanded manner, these laws must also expand suitably, either by direct amendments to their words as they are etched on paper or as they are understood and interpreted by the forces of the executive and the courts of law.
But before it comes to that, an objection to its expansive import, as put forth by the authors, must be overcome. The objection and an answer to quell it are discussed in the next part.
Are these observations binding?
A judgment consists of many parts, a narration of facts and in case it is a judgment rendered by an appellate court, a detailing of the reasoning given by the lower court, the arguments advanced, an analysis of the law, a holding on the question before it and, connected observations.
What is binding upon a lower court is the holding on the question of law i.e. the reasons the court gave for reaching its decision, and the decision itself. It is said to be the “statement of law applied to the material facts”18. In other words, the ratio decidendi. Then, what is the ratio in this case? It is that the Central Civil Services (Leave) Rules, 197219, by virtue of their beneficial nature, have to be given a beneficial construction, and that an applicant for maternity leave cannot be denied such leave because she had previously availed of childcare leave.
Then, the question arises, why do the authors place much importance on the observations on the exclusionary and arguably stale definition of family? One may say that these observations of the Bench are obiter dicta20. Dicta are those remarks which are made in passing or are not directly connected to the case at hand, and therefore cannot be binding on lower courts.
It is the case of the authors that the observations recorded in the judgment with respect to atypical families are not mere dicta but are something more. They would be “judicial dicta”, which is an expression of opinion on a point deliberately passed21 upon by the court.
In the present facts, the family of the appellant would squarely fit into what has been termed an atypical family. Deepika Singh is mother, not only to her own child for the birth of whom she sought maternity leave, but also to her husband's two children from a previous marriage. Given this reasoning, the observations of the Court in this regard cannot be mere dicta, as they are intrinsically connected to the facts of the case- and have been noted, as is apparent, to drive home the point of “family” being more than “a single, unchanging unit with a mother and a father (who remain constant over time) and their children”22 qualifying thereby as “judicial dicta” providing one of the bases for the decision of the Court. Therefore, the observation of the Court being of this deliberate nature, would be binding.
In the eyes of the Supreme Court of India, the final arbiter of all laws, the family is an inclusive space, and all those such as single parent families, unmarried partnerships and queer relationships would be entitled to protection under the law.
How would the laws and their corresponding enforcement mechanism need to change for the on-ground situation to match with these forward looking, progressive dicta? The next part explores this question.
Laws as they stand today
Section 724 of the Hindu Adoptions and Maintenance Act, 195625, (HAMA) and the corresponding Section 826 allows adoption only by any male or a female, which in itself, is arguably in the teeth of National Legal Services Authority v. Union of India27 and other judgments of the Supreme Court as well, however, as it restricts people identifying themselves as LGBTQ+ from adopting any child. Additionally, the text of the law as it stands today requires that should the person being married seeks to make an adoption, he or she requires permission of their spouse. Now, if people in a live-in relationship constitute a family in the event of an adoption, is permission required as in terms of Sections 7 and 8, by the live-in partner as well? Because, needless to say, a child entering such a home will impact such a person’s life and be their responsibility as well. This issue creates additional hindrance for LGBTQ+ citizens, as live-in relationships are the only option available to them as of now. As on 16-6-2022, the Central Adoption Resource Authority, which is the nodal body, issued an office memorandum under which a single prospective adoptive parent (PAP) who is in a live-in relationship will not be considered eligible to adopt. The reason provided is that “a single applicant in a live-in relationship cannot be considered as [a]stable family”.28
Then, in terms of succession, which body of laws in India is mostly gendered29 and requires marriage as an essential, leaves no scope for a gay or lesbian couple for example, to inherit the possessions of their other half upon their death. This issue extends to both Hindu Succession Act, 1956 (HSA)30 and to the Succession Act, 192531. As an illustration, one can see that Hindu Succession Act32 only provides for succession of either males (Section 833) or females (Section 1534), and such principles of succession prescribed under these sections are also based on binary understanding of gender and leaves out transgender persons, among others. This obviously goes against “family” as interpreted under Deepika Singh35.
The next example is the recently introduced the Surrogacy (Regulation) Act, 202136. Section 2(1)(h) of the Act defines a couple as a married heterosexual couple. Therefore, right at the threshold, a large swath of society is excluded from having a child through surrogacy. It will not come to the aid of LGBTQ+ couples nor to those in live-in relationships, among others.
Letter of the law must not be used to disadvantage one party over another
This observation by the Court is in furtherance of those made in landmark judgments of R. Rajagopal v. State of T.N.37 K.S. Puttaswamy v. Union of India38 and Navtej Singh Johar v. Union of India39 . The sanctity of marriage, the liberty of procreation, the choice of a family life, dignity and autonomy are all within the right to privacy. The choice of a family life, in the understanding of the authors, does not only mean the unchanging family unit, as described in the judgment, subject of this piece. Within its sweep come all forms of the atypical family as well. In other words, the structure of what constitutes a family would therefore be covered under Puttaswamy40, a watershed moment in the development of Indian constitutional law.
This judgment, therefore, along with those mentioned above, have a bearing on a case, which is yet pending before the Delhi High Court, Abhijit Iyer Mitra v. Union of India41 i.e. the same sex marriage case. It can be argued that queer relationships, once have been explicitly recognised as family, it would be counterproductive to say that same sex couples although constitute family, are not allowed to marry. After all, it has been observed “these manifestations of love and of families may not be typical but they are as real as their traditional counterparts”.
What is then for the legislature to consider and act upon with despatch is the most appropriate and effective manner in which to address this exclusionary language within the laws discussed as examples above, but also in all those laws which impede the realisation of the words of Supreme Court. Whether this is by conducting a comprehensive study of the body of laws and then amending the same or otherwise with a legislation aimed particularly at securing rights of this nature that is a subject of individual study.
The importance of doing so, cannot be gainsaid. It is not only essential to the vibrant continuance of the rule of law, that the constitutional freedoms, rights, and duties apply indeed to all, but also that each and every person within the borders of our democratic country, have the ability and the necessary protections to be able to express themselves as they wish through such form of “familial entity” as they choose, depending on their own circumstances. Very obviously, wanting to have the happiness, the trials, and tribulations of life as a family, like other people, cannot be, in any way, contrary to our founding document, that has time and again asserted, its living nature.
It is imperative that the path set alight by Chandrachud, J. in Deepika Singh42 is understood in its true import, walked upon, and followed to its destination that of a welcoming, inclusive society where equality for all is not a mere epithet on a page.
† Law Assistant at Office of the Chief Justice, Patna High Court. Author can be reached at <firstname.lastname@example.org>.
†† Associate at S&R Associates, New Delhi. Author can be reached at <email@example.com>.
18. Jonathan Law and Elizabeth A. Martin, “Ratio Decidendi”, Oxford Dictionary of Law (7th Edn., 2009), <https://www.oxfordreference.com/view/10.1093/oi/authority.20110803100405351> accessed on 10-9-2022.
28. Central Adoption Resource Authority OM dated 16-6-2022, <http://cara.nic.in/PDF/Registration-of-cases-of-single-PAPs-having-a_live-in_partner-in-a-long-time-relationship-and-not-married160622.pdf> accessed on 11-9-2022.
29. Karan Gulati and Tushar Anand, “Inheritance Rights of Transgender Persons in India” (2021) NIPFP Working Paper Series <https://www.nipfp.org.in/media/medialibrary/2021/08/WP_350_2021.pdf> accessed on 11-9-2022.