The petitioners in the present case are members of the LGBTQIA+ community and have claimed to face social, economic, and political marginalization merely on the basis of their gender identity and sexual orientation. The petitioners, Supriyo Chakraborty and Abhay Dang, a same-sex couple who wanted the court to give legal recognition to their marriage, filed a writ petition in the Supreme Court on 14th November 2022. The petitioners challenged the legality of Section 4(c) of the Special Marriage Act of 1954, claiming that it discriminates against same-sex couples by denying them legal recognition along with other laws like the Foreign Marriage Act, 1969 (‘FMA 1969′) and the Hindu Marriage Act, 1955 (‘HMA 1955′) and therefore contended that these legal provisions be made gender neutral thereby embedding homosexual couples as well. Similar petitions which were pending before the High Courts were also transferred to the apex court.
The petitioners claimed to have endured considerable difficulties as a result of their same-sex relationship, including criticism from family and threats of assault and abuse from the general public. The petitioners obtained interim police protection from the Delhi High Court via order dated 12-04-2019, but they continued to be harassed, leading to tremendous instability in their lives and damaging their opportunities for learning and work. They wished to be legally married and have their relationship publicly acknowledged since they continued to confront exclusionary, discriminatory, and unconstitutional requirements of the SMA, 1954 and similar laws that only allow marriage between a man and a woman. This exclusion further hampered their right to equality, life, dignity, liberty, privacy, and freedom of expression guaranteed by the Indian Constitution. Moreover, they were not able to derive the benefits of social welfare schemes provided to married heterosexual couples.
A 3-judge Bench headed by CJI D.Y. Chandrachud sent the matter to a 5-judge Constitution Bench on March 13, 2023. Following ten days of testimony, the five-judge bench reserved the judgment on May 11, 2023. Finally, on October 17, 2023, the 5-judge Bench issued its decision on petitions requesting equality in marriage for LGBTQIA+ people.
ISSUES
- Whether there is a fundamental Right to Marry?
- Whether sections of the Special Marriage Act that do not recognise marriage between the same sex unconstitutional?
- Whether unmarried and queer couples have a Right to Adopt?
- Whether transgender people who are part of a heterosexual relationship have a Right to marry as per the existing laws?
CONTENTIONS
By Petitioner:
- The petitioners argue the right to choose a partner is an important facet of right to life and personal liberty under Article 21. They argue that the option to engage into and have a committed relationship of one’s choosing helps people to develop their identities and reach their full potential. Denying LGBTQ people the right to marry based simply on their sexual orientation or gender identity violates a fundamental part of personhood.
- The petitioners argue that excluding same-sex couples from marriage legislation such as the Special Marriage Act breaches Article 14’s right to equality before the law and equal protection of laws. They submit that there is no intelligible differentia in classifying heterosexual and homosexual people and it cannot justify differential treatment in marriage recognition.
- The petitioners argued that while heterosexual couples easily prove their marriage under the law, it’s nearly impossible for prospective adoptive parents, like themselves, whose non-heterosexual marriage lacks legal recognition. Adopting under present regulations requires one petitioner to surrender legal connections to the child, which violates their right to family life and motherhood—an essential component of Directive Principles of State Policy and the Right to life.
By Respondent:
- The respondents argue that the right to marry has not been explicitly mentioned anywhere in the constitution, only the right to choose a spouse of choice is recognised. They argue that the main aim of marriage is procreation and the same would not be possible by granting same-sex couples the right to marry. Also, they claimed that the state only regulates a marriage when there is legitimate public interest i.e., procreation which is essential for the survival of society.
- Respondents argue that the exclusion of non-heterosexual couples from marriage legislations such as SMA is not a valid ground to declare this legislation as unconstitutional or void as long as it serves its original aim of recognising inter-faith and inter-caste marriages. Further, declaring it void would defeat the objective of law altogether.
- They argued that according to adoption laws like the Juvenile Justice (Care and Protection of Children) Act, 2015 marriage is a pre-requisite for adoption and such framework differentiating between married and unmarried spouses is put into place keeping in mind the best interest of the child.
- They also argued that transgender people in a relationship of heterosexual nature are entitled to legal recognition just like heterosexual couples.
RATIONALE
CJI Chandrachud and Justice Kaul in minority; Justices Narasimha, Kohli, & Bhat majority. They ruled against legalizing same-sex marriages in a 3:2 decision.
The court reached the conclusion that the Right to marry is not encompassed within the realm of Fundamental Rights. Chief Justice Chandrachud articulated that the Constitution does not expressly acknowledge the existence of a fundamental right to marry.
He emphasised that Parliament is responsible for enacting marriage legislation, with state legislatures having the right to amend them. Furthermore, he emphasised the need for those state legislatures that have not already established a marriage framework to do so in accordance with the affirmative aspect of the right to marry. Justice S.R. Bhat agreed with the Chief Justice, but Justice Narasimha argued that marriage is a fundamental liberty instead of a simple right.
In examining the constitutionality of certain provisions in the Special Marriage Act (SMA) that do not recognize same-sex marriages, CJ Chandrachud expressed concerns about deeming the SMA void. He argued that such a decision would regress India to a pre-independence era when inter-caste and inter-faith relationships were deemed impermissible. According to him, this judicial outcome could not only revive social inequality and religious intolerance but also force the courts into a dilemma of eliminating one form of discrimination at the expense of permitting another. Justice Bhat emphasized that the primary purpose of the SMA was to facilitate marriages between individuals of different faiths. He contended that as long as a law has a identifiable objective, criticism should not be given solely for not establishing a more precise classification.
Under the Juvenile Justice (Care and Protection of Children) Act, 2015, marriage is a mandatory condition for adoption, requiring both spouses to provide consent. In a split decision (3:2), a five-judge panel concluded that the right to adopt a child is not extended to same-sex couples. Justice Bhatt explained that the prerequisite of marriage serves as a safeguard, ensuring that if one parent abandons the relationship, the other can provide for themselves and the child—an option unavailable to a couple without legal recognition. He emphasized that the Juvenile Justice Act’s fundamental principle is prioritizing the child’s best interests rather than enabling adoption for everyone. Additionally, he stressed the state’s responsibility to ensure that as many children as possible, in need of secure and comforting homes, receive good welfare and support for their comprehensive development.
CJI Chandrachud underlined that a transgender person involved in a heterosexual relationship holds the right to marriage. He emphasized the need for a cohesive interpretation of prevailing marriage laws and the Transgender Persons Act. Noting the usage of terms like “man,” “woman,” “husband,” and “wife” in Indian marriage laws, including the Special Marriage Act (SMA), he advocated for a broad legal viewpoint. He argued that being transgender pertains to gender identity, not sexual orientation.
Even though the Court didn’t acknowledge same-sex marriage as a fundamental right, it instructed the Union of India to form a high-level committee to tackle the difficulties encountered by cohabiting same-sex couples, encompassing concerns related to discrimination.
DEFECTS OF LAW
The main viewpoint of the majority opinion can be criticized because it emphasizes a clear division between public and private matters. This stance implies that the government should only step in when there’s a specific law, potentially overlooking the significant influence of societal norms and discrimination on people’s private lives. In simpler terms, critics might argue that this approach doesn’t fully acknowledge how broader social issues can impact individuals in their personal spheres.
I find it a bit confusing to see Justice Chandrachud changing his stance on the fundamental right to marry. In Shafin Jahan, he strongly said that the right to marry is a crucial part of Article 21. However, in the recent case, he brings up this idea that the right to marry might depend on the sexual orientation of the couple. This makes me worry about how consistent and dependable the court’s decisions are.
The Chief Justice’s decision not to dig into whether the Special Marriage Act (SMA) is constitutional, even though he admitted it has discriminatory effects is confusing. The Chief Justice’s rationale, citing institutional capacity constraints and potential harm to those currently benefiting from the Act, raises questions about whether these reasons should take precedence over the obligation to assess the constitutionality of a law with apparent discriminatory implications.
Article 142 of the Constitution gives the court the power to make decisions in the pursuit of complete justice without being restricted by specific conditions. Cases like Vishaka, where the court created a plan to tackle sexual harassment in the absence of a law, is an example of the court’s ability to provide access to both institutions and fundamental rights. The contention is that the majority missed an opportunity by not considering this broader authority.
Some people might not agree with Justice Chandrachud’s minority opinion, especially because he suggests a specific solution like civil unions. They might ask why we need a special right to civil unions if there’s no fundamental right to marry. They could also question whether this recommendation interferes with people’s freedom to make their own personal choices. In simpler terms, critics might argue that suggesting a particular type of relationship, like civil unions, could be seen as too controlling, especially when there’s no guaranteed right to traditional marriage.
INFERENCE
In summary, the Supriya Chakraborty case reveals the intricate legal landscape of same-sex marriage in India. The Constitution aims to balance the diverse rights of all citizens. Presently, the LGBTQIA+ community follows the court’s directive for a committee on queer couples’ rights. Marriage in India has evolved, condemning past practices like child marriage and advocating for inclusiveness, equality, and dignity. The Constitution doesn’t prescribe a uniform marriage concept but mandates the state to regulate relationships without violating fundamental rights. Denying legal recognition to same-sex and transgender unions is considered unconstitutional discrimination. The court highlights the need for substantive directives to ensure LGBTQIA+ rights and calls for comprehensive legal reform through participatory democratic processes. In essence, a balanced approach, respecting fundamental rights and democratic governance, is crucial for societal progress.
Rishita Yadav
Symbiosis Law School, Noida