Queer Partners Can Take Medical Decisions in Emergencies If Authorised by Patient

Why in News? 

Before a Bench of Justice Swarana Kanta Sharma of the Delhi High Court, the Union Ministry of Health & Family Welfare and the National Medical Commission (NMC), in Arshiya Takkar v. Union of India & Ors. (2026), have submitted that a competent adult should be permitted to nominate their partner, including a partner in a non-heterosexual or queer relationship, to take medical decisions on their behalf if they subsequently become incapacitated. 

What was the Background of Arshiya Takkar v. Union of India & Ors. (2026) Case? 

• The petition was moved by Arshiya Takkar, seeking the framing of guidelines to recognise the non-heterosexual partner of a patient as their medical representative, empowered to give consent in medical situations. 
• In the alternative, the plea sought a declaration that a medical power of attorney given in advance by a patient to their non-heterosexual partner should be sufficient to permit such partner to act as the duly constituted medical representative during medical treatment or emergencies. 
• The petitioner relied on Clause 7.16 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, which mandates consent for medical procedures from a "husband or wife, parent or guardian in the case of a minor, or the patient himself," and contended that the absence of explicit recognition of partners in a queer union rendered her effectively powerless to make critical medical decisions for her partner — a right readily available to heterosexual couples. 
• The petitioner contended that this constituted "systemic exclusion" and discrimination on the ground of sex under Article 15 of the Constitution, relying on Navtej Johar v. Union of India, which recognised sexual orientation as covered under the meaning of "sex," and further argued that the exclusion violated the right to life and personal liberty under Article 21. 
• Last month, Justice Swarana Kanta Sharma had orally questioned the Centre on why, if same-sex partners have the right to relationship and cohabitation, they should be denied the choice to give medical consent for each other. 

What has the Centre Submitted Before the Court? 

• On Accommodating the Relief Within the Existing Framework: The Centre submitted that the reliefs sought in the petition are substantially capable of being accommodated within the existing legal and ethical framework, subject to applicable law and appropriate safeguards. 
• On Respecting Constitutional Guarantees to the LGBTQIA+ Community: The Centre stated that it 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 clarified that its response was not intended to question the constitutional protection available to persons in queer relationships. 
• On the Absence of Rationale for Exclusion Based on Sexual Orientation: The Centre submitted that where a competent adult has nominated or otherwise authorised their partner to act on their behalf in the event of incapacity, there is no medical or ethical rationale for excluding such 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. 
• On Relationships of Care Not Being Confined to Marital or Blood Ties: The Centre observed that administrative measures already demonstrate consistent recognition that relationships of care, dependence, and mutual responsibility are not necessarily confined to formally recognised marital or blood relationships, and that permitting a competent adult to nominate a queer partner for medical decision-making would be a logical and tailored extension of the same principle. 
• On the Interpretation of Clause 7.16 of the IMC Regulations, 2002: The Centre submitted that Clause 7.16 may be read harmoniously and purposively with the existing legal framework, so as not to exclude a partner duly nominated or authorised by a competent adult patient, merely on account of sex, gender, sexual orientation, or the absence of a formally recognised marital relationship. 
• On the Position in the Absence of Prior Nomination: The Centre submitted that in the absence of a 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 or next friend for the purposes of medical decision-making. 
• On Advancing Constitutional Values: The Centre submitted that such an interpretation, while preserving patient safety and due process, would advance the constitutional values of autonomy, dignity, equality, and non-discrimination. 
  • The Centre accordingly urged that the petitioner's prayers be examined in light of existing statutory provisions, judicial pronouncements, and government policy measures, with medical decision-making ultimately depending on the nature of treatment, the circumstances, the patient's wishes, and the applicable legal framework. The matter remains pending before the Delhi High Court.

What is LGBTQIA+? 

About: 

• LGBTQIA+ is an acronym representing lesbian, gay, bisexual, transgender, queer, intersex, and asexual persons. 
• The "+" represents the many other identities still being explored and understood; the acronym is constantly evolving and may include terms like non-binary and pansexual. 
• On the term "Queer": The term "Queer," now used within the acronym as an inclusive, self-identifying label, was earlier used as a derogatory slur against persons who did not conform to heterosexual or cisgender norms. It has since been reclaimed by the community as a term of pride and self-identification, and is today used as an umbrella term covering persons whose sexual orientation, gender identity, or gender expression falls outside conventional heterosexual or binary norms — including, but not limited to, those who identify as lesbian, gay, bisexual, transgender, or non-binary. 

History of Recognition of LGBTQIA+ in India: 

Colonial Era and Stigma (Pre-1990s): 

• 1861: Section 377 of the Indian Penal Code is introduced under British rule, criminalising "carnal intercourse against the order of nature," and becomes a major hurdle for LGBTQIA+ rights in India. 

Early Recognition and Activism (1990s): 

• 1981: The first All-India Hijra Conference is held. 
• 1991: The AIDS Bhedbhav Virodhi Andolan (ABVA) publishes "Less Than Gay," the first public report on the status of LGBTQIA+ people in India, demanding legal changes. 

Landmark Cases and Setbacks (2000s): 

• 2001: The Naz Foundation files a Public Interest Litigation (PIL) challenging Section 377. 
• 2009: The Delhi High Court, in Naz Foundation v. Govt. of NCT of Delhi, decriminalises consensual homosexual acts, seen as a major victory for LGBTQIA+ rights. 
• 2013: The Supreme Court, in a setback, overturns the Delhi High Court's decision and upholds Section 377. 

Recent Advancements and Ongoing Struggle (2010s–Present): 

• 2014: The Supreme Court, in National Legal Services Authority v. Union of India (NALSA judgment), recognises transgender persons as a "third gender." 
• 2018: The Supreme Court, in Navtej Singh Johar v. Union of India, strikes down Section 377, decriminalising consensual same-sex relationships. 
• 2019: The Transgender Persons (Protection of Rights) Act, 2019 is passed, granting legal recognition and prohibiting discrimination against transgender individuals. 
• 2020: The Uttarakhand High Court acknowledges legal protection for live-in relationships of same-sex couples. 
• 2021: In Anjali Guru Sanjana Jaan v. State of Maharashtra & Ors., the Bombay High Court holds that the petitioner, a transgender woman whose Village Panchayat election application (filed as a female candidate) was rejected, had the right to self-identify her gender, and accepts her application. 
• 2022: In August 2022, the Supreme Court expands the definition of "family" to include same-sex couples and queer relationships. 
• 2023: In October 2023, a five-judge Constitution Bench of the Supreme Court rejects petitions seeking legalisation of same-sex marriage in India, holding that it lacks the authority to modify the Special Marriage Act, 1954 by adding or removing provisions to include same-sex couples, and clarifies that the responsibility for enacting such laws lies with Parliament and state legislatures.