Facts
The case of Supriyo @ Supriya Chakraborty & Anr. v. Union of India is pivotal for same-sex marriage legalization in India. The petitioners submitted a writ petition to the Supreme Court on November 14, 2022. Their argument centered on the claim that the Special Marriage Act of 1954 infringed upon their fundamental rights by limiting marriage to heterosexual couples. They contended that this exclusion deprived same-sex couples of essential rights such as inheritance, adoption, tax benefits, and medical decision-making authority.
The petitioners contended that Section 4(c) of the SMA, which defines marriage as a union of a ‘male’ and a ‘female’, is against constitutional principles. They contended that the provision is discriminatory against LGBTQIA+ individuals, in contravention of their rights as enshrined in Articles 14 (right to equality), 19 (freedom of expression), and 21 (right to life and dignity) of the Constitution. They noted that legal recognition of same-sex marriages would accord them equal status under the law, consistent with India’s progressive constitutional vision of LGBTQIA+ rights.
The Union of India opposed the petitions, asserting that marriage has historically been a heterosexual institution in Indian society. The government argued that marriage definition falls under legislative authority and that legal recognition of gay marriage should occur via democratic processes rather than judicial intervention.
Acknowledging the constitutional significance of the matter, the Supreme Court assigned the case to a five-judge Constitution Bench for deliberation. After extensive hearings, the Court issued its verdict on October 17, 2023. Ultimately, the Court determined that recognizing same-sex marriage as a fundamental right necessitates legislative action.
Issues Raised
The Supreme Court was faced with a defining question: was the exclusion of same-sex couples from the institution of legal marriage a breach of their fundamental rights? This case presented several important constitutional issues:
Does the Special Marriage Act of 1954 violate the basic rights of gay couples? The petitioners were opposed to Section 4(c) of the SMA, which rigidly defines marriage as a union between a man and a woman exclusively.
Thereafter, the question remains as to whether marriage is a fundamental right according to the Indian Constitution. The petitioners stated that marriage forms part of an individual’s right to life and liberty under Article 21. They referred to earlier Supreme Court decisions, for instance, Navtej Singh Johar v. Union of India (2018), where the court acknowledged the dignity and autonomy of the citizens of the LGBTQIA+ community.
The other major question was whether the courts could order the recognition of same-sex marriage, or whether this was the exclusive preserve of Parliament. The government contended that the recognition of same-sex marriage would involve a fundamental rewriting of numerous laws and social norms and that only the Parliament could do this.
Finally, what is the consequence of not recognizing same-sex marriage? The Court addressed the legal and societal consequences of denying marriage rights to gay couples, specifically regarding inheritance, adoption, medical decisions, and tax benefits. The petitioners contended that lack of legal recognition is an ongoing cause of discrimination and social marginalization.
Arguments
Petitioners’ Arguments:
The petitioners relied on constitutional rights, principles of law evolving, and international precedents. They contended that:
The SMA discriminates against LGBTQIA+ individuals: They contended that the restriction of marriage to heterosexual couples under Section 4(c) of the SMA violated Article 14 (equality before the law) and Article 15 (discrimination on grounds of sex prohibited). They contended that denial of marriage rights on grounds of sexual orientation alone was unconstitutional discrimination.
Marriage is a basic human right. The authors quoted earlier Supreme Court rulings, such as Lata Singh v. State of U.P. (2006) and Shafin Jahan v. Asokan K.M. (2018), where the right to marry was held to be an aspect of personal liberty. The authors contended that denying marriage to gay couples denies them this basic right.
Social and economic disadvantages: The petitioners acknowledged that the lack of legal recognition took away basic rights such as property succession, insurance benefits, adoption, and spousal rights in medical and legal contexts from same-sex couples. They claimed that legal recognition was important to gain full social inclusion.
Respondent’s Contentions:
The Union of India, and other opposing parties, presented counterarguments that emphasized the significance of legislative power and social norms. Their key arguments were:
Marriage is a legislative concern: The government argued that the meaning of marriage is a matter of legislative concern, and that its extension must be decided by democratic processes rather than by the courts.
Traditional and cultural understanding: The government argued that historically, marriage has been understood as between one man and one woman in Indian society. They cautioned that the recognition of same-sex marriage would lead to fundamental changes in society that would require more broadly based public discussion.
The need for overall legal reforms: The respondents stressed that the legalization of same-sex marriage would require a change in a variety of different laws, such as adoption laws, inheritance laws, taxation laws, and family law. They insisted that these kinds of changes couldn’t be made simply through court decisions.
Rationale
The Supreme Court order in the case of Supriyo @ Supriya Chakraborty & Anr. v. Union of India is prudent and contemplative in the matter of same-sex marriage. Although the Court recognized the discrimination faced by LGBTQIA+ citizens, it still held that the Indian Constitution does not bestow the right to marriage upon same-sex couples. The decision was based on two primary principles: the doctrine of separation of powers and the need for legislation to address complex social and legal problems.
The five-judge Constitution Bench pronounced a judgment with differing opinions. Chief Justice D.Y. Chandrachud and Justice S.K. Kaul were more open in their thoughts, affirming that legal protections and benefits shall be granted to same-sex couples. They referenced the constitutional tenets of the dignity, equality, and autonomy of the person and argued that it is the responsibility of the State to conceptualize legal frameworks securing the rights of LGBTQIA+ individuals. But they were also clear-cut in stating that the judiciary does not have the right to recast marriage sans legislative action.
Conversely, Justices Ravindra Bhat, Hima Kohli, and P.S. Narasimha were traditional in their thinking and contended that marriage is a socio-legal institution historically defined as involving a woman and a man. They contended that any extension of this idea would involve extensive legislative debate considering the extensive implications for inheritance, succession, adoption, and family laws.
While the Court has not awarded marriage equality, it did direct the government to constitute a committee that will examine the rights of LGBTQIA+ couples and recommend legal reforms. That recognition of the challenges faced by such couples, even if not completely embracing their rights, is a shift of judicial perspective. The judgment continues to leave same-sex couples without existing legal remedy, thus indicating the necessity of legislative intervention in order to fill the gap between constitutional values and law.
Defects of Law
The judgment given by the Supreme Court exposes stark loopholes in Indian law with regards to the rights and recognition of LGBTQIA+ individuals. Although the ruling acknowledged the rights of their protection, it failed to establish a strong legal foundation for same-sex couples, thereby exposing them to danger.
A critical concern is the total absence of legal recognition of same-sex couples. The Court did not compel the government to pass civil unions or domestic partnerships as substitutes for marriage, leaving LGBTQIA+ couples without fundamental spousal rights related to matters such as inheritance, medical decisions, tax exemptions, or adoption. The lack of recognition contravenes the equality and non-discrimination principles listed in Article 14.
The ruling highlighted the lack of effective anti-discrimination measures. Despite the legalization of homosexuality by the Navtej Singh Johar (2018) ruling, India lacks a comprehensive anti-discrimination law for LGBTQIA+ individuals across various sectors. Consequently, LGBTQIA+ individuals continue to face systemic discrimination.
Another significant lacuna involves the uncertainty relating to the rights of family. The verdict did not settle crucial issues of adoption and surrogacy of gay couples and therefore left them to the vagaries of personal laws and the arbitrariness of bureaucratic whims. This uncertainty adds to their marginalization and deepens the heteronormative biases of the judicial establishment.
Moreover, the Court’s use of the separation of powers doctrine as the grounds for inaction is a denial of constitutional morality’s protective role towards vulnerable populations. Traditionally, the judiciary has played the lead role in the evolution of rights, and landmark judgments such as K.S. Puttaswamy (privacy) and Navtej Singh Johar readily come to mind. The Court’s inability to extend similar safeguards to marriage equality is a lost opportunity for meaningful legal reforms.
Inference
The Supreme Court ruling signifies a pivotal moment in the pursuit of LGBTQIA+ rights in India, while also highlighting certain constraints. Although it recognizes homosexual struggles, it defers marriage equality to the legislature, reflecting a gradual approach to legal acknowledgment of LGBTQIA+ rights. This ruling illustrates the Indian judiciary’s cautious yet evolving stance on social reform. Unlike previous landmark decisions, such as Navtej Singh Johar, this ruling fails to offer substantial legal remedies. By not amending the Special Marriage Act to include same-sex couples, the Court has effectively delegated the issue to lawmakers, who have historically been reluctant to address LGBTQIA+ concerns.
While this decision seems to be two steps backwards, the Court’s acknowledgment of the need for legal protection of gay couples opens a window for future campaigns for advocacy, legal and political. The suggestion to create a government committee with the goal of addressing LGBTQIA+ rights is a small but valuable step towards future reform. However, without decisive commitment from the legislature, this project threatens to be nothing more than a symbolic gesture and not bring about meaningful policy reform. The verdict also provokes wider controversy with regard to judicial activism and the judiciary’s role in promoting constitutional rights. As much as previously courts have taken the lead on change in past human rights decisions, their cautiousness in embracing same-sex marriage demonstrates a rigorous attempt in construing the Constitution. In thinking about the future, it is probable that progress towards marriage equality in India will be based on ongoing activism, public debate, and legislative reform. While the ruling may not have achieved absolute equality, it has initiated a national conversation that can ultimately lead to absolute legal acceptance of same-sex relationships.
Bhavya Singh
National Law Institute University, Bhopal