Citation: Writ petition (civil) No. 1011 of 2022
Court: Supreme Court
Date of Judgement: October 17, 2023
Petitioners: Supriyo @ Supriya Chakraborty and Anr.
Respondent: Union of India
Bench: CJI D.Y Chandrachud, J.S.K Kaul, J. Ravindra Bhat, J. Hima Kohli and J.P.S Narasimha.
FACTS
A big consequential case was filed by two same sex couple, one was Supriya Chakraborty and Abhay Dang, another was Parth Phiroze Merhotra in the Apex Court of India on November 14th 2022. The writ petition revolves around the constitutional validity of sec 4© of Special Marriage Act 1952 which restrict the marriage as a relation only between a male and female and denying the essential matrimonial rights such as adoption, surrogacy and jobs. A plea was also associated with it challenging Hindu Marriage Act 1969.
Their contention was based on the belief that non-recognition of homosexual marriages infringes Fundamental Right of third gender who constitute a part of citizens such as right to equality, freedom of expression, etc.
In the support of their case, they cited Naaz Foundation vs Government of India which held sec 377 old IPC (repealed in BNS) to exclude consensual homosexual act between two adults. In Suresh Kumar Kaushal vs Naaz Foundation, Supreme Court reversed this judgement and held sec 377 as violation of Article 21 of constitution.
National Legal Service Authority vs UOI and J. k.s. Puttaswamy vs UOI, the court held the state must recognize person who fall outside male, female gender and entitled the constitutional rights.
ISSUES RAISED
- Maintainability of the suit before supreme court.
- Does a Fundamental Right to marry exist for LGBTQ+ community?
- Does the non-inclusion of LGBTQ marriage under Special Marriage Act 1954 amount to discrimination?
- Can unmarried queer couples have the right of adoption?
- Is special marriage act constitutional?
CONTENTION OF PETITIONER
- Based on a number of legal precedents and concepts, the petitioners made a strong case. They emphasized the problems with notice and objection clauses in the Special Marriage Act and Foreign Marriage Act, arguing that it was a violation of fundamental rights for couples from sexual and gender minority communities to be excluded from marriage legislation. They affirmed their right to petition the Supreme Court by citing Article 32 of the Indian Constitution, which gives the court the authority to protect fundamental rights.
- The Supreme Court’s ruling that any rule that does not safeguard an individual’s self-determination of sexual orientation and gender identity is irrational and arbitrary was referenced in support of Article 14 of the Indian Constitution, which guarantees the right to equality. Additionally, instances like Lt. Col. Nitisha v. UOI and Deepika Singh v. Central Administrative Tribunal acknowledged the idea of substantive equality, highlighting the importance of equal legal protection for unconventional families, including partnerships between members of sexual and gender minorities.
- Based on several constitutional articles, the petitioners aimed to grant these communities the right to marry and start a family, building on the Supreme Court’s recognition of fundamental rights for members of sexual and gender minorities in NLSA v. UOI, Puttaswamy v. UOI, and Navtej Singh Johar v. UOI.
- The argument also drew strength from High Court decisions, such as the Madras High Court’s ruling in Arun Kumar v. Inspector General of Registration, which declared that the refusal to register the marriage between a Hindu cisgender man and a Hindu transgender woman violated fundamental rights as guaranteed under various articles of the Indian Constitution.
CONTENTIONS BY THE RESPONDENTS
- The idea of marriage, which is ingrained in our social, cultural, and legal fabric, naturally presumes a union between people of opposite genders. Judicial interpretation of this definition should be avoided, and any possible changes should be left to capable legislative bodies.
- Personal laws determine the type of marriage. It is considered a sacred ritual by Hindus, who emphasize the reciprocal responsibilities of a man and a woman. Although it is still limited to a biological man and woman, it is a contract in Islam. It would be illegal to ask the court to change this long-standing legislative policy that is firmly anchored in social and religious traditions.
- The petitioners are unable to claim a basic right to have same-sex marriages accepted by the Indian legal system, even though Section 377 of the Indian Penal Code has been decriminalized. In the case of Navtej Singh Johar v. Union of India (2018) 10 SCC 1, the Hon’ble Supreme Court made it clear that although people have the right to union under Article 21 of the Constitution, this does not imply marriage.
- In India, marriage is defined as the union of a biological man and a biological woman, as permitted by both personal and codified laws such as the Christian Marriage Act of 1872 and the Hindu Marriage Act of 1955. Beyond simple acknowledgment, this institution has important social and legal ramifications. Legal acceptance of same-sex marriage is not the same as family concerns, which include rights and obligations.
- Additionally, it would be against current personal and codified laws to register same-sex weddings, including those pertaining to forbidden partnerships, marriage conditions, ceremonial and ritual requirements, and more. The Legislature alone has the authority to enact laws pertaining to marriage, divorce, alimony, and associated issues.
- In India, marriage is explicitly defined by law as a relationship between a biological man and a biological woman. Numerous legislations, personal laws, and penal laws utilize particular phrases such as “husband” and “wife,” “male” and “female,” “bride” and “bridegroom,” among others, which clearly demonstrate this meaning. This is in line with India’s explicit legislative policy, which the Court has no authority to alter.
RATIONALE
In Justice KS Puttaswamy, Shafin Jahan, and Shakti Vahini, the Hon’ble Supreme Court did not consider whether the Constitution protects the freedom to marry. The rulings in Navtej (above) and Justice KS Puttaswamy (9J) (above) acknowledge LGBT couples’ freedom to choose whether or not to be married. There are no outside risks to this relationship. Sexual orientation discrimination is against Article 15. According to the ruling in Common Cause v. Union of India, as amended by that case, doctors are required to speak with a patient’s family, next of kin, or next friend if the patient is terminally ill and has not signed an Advance Directive. For this purpose, the parties to a union may be regarded as “family”.
Because of its institutional restrictions, the Hon’ble Supreme Court was unable to either invalidate the constitutionality of the SMA or add new provisions. Because doing so would constitute judicial legislation, this Court is unable to insert language into the SMA’s provisions or those of other related laws like the ISA and the HSA. When using its judicial review authority, the Court must avoid issues that belong in the legislative branch, especially those that affect policy.
JUDGEMENT
The Supreme Court rendered a landmark decision on the legal acceptance of same-sex marriage by a majority vote of 3:2. Three judges made up the majority, and they refused to recognize same-sex weddings as lawful. They emphasized that Parliament has the authority to decide whether same-sex marriage is lawful and that the freedom to marry is not necessarily a fundamental principle. Additionally, the majority judges argued that the Special Marriage Act’s Section 4(c), a crucial piece of legislation in question, did not violate same-sex couples’ fundamental rights. Their reasoning was based on the idea that same-sex couples have other legal options that suit their needs, like civil partnerships and live-in relationships.
On the other hand, Justices S.K Kaul and D.Y. Chandrachud, who dissented, had a different opinion. They adamantly maintained that marriage ought to be considered a fundamental right. Additionally, they contended that same-sex couples’ fundamental rights are in fact violated by Section 4(c) of the Special Marriage Act. According to the opposing justices, a person’s right to marriage is an essential component of their right to life and personal freedom. They argued that same-sex couples ought to have the same rights in marriage as heterosexual ones. The complicated and divisive nature of the legal discussion surrounding same-sex marriage is shown by this split decision.
The dissenting judges call for the immediate acknowledgment of every couple’s fundamental right to marriage, regardless of gender or sexual orientation, while the majority’s ruling leaves the issue to legislative action.
INFERENCE
LGBTQ+ rights activists were disappointed and frustrated by the Supreme Court’s decision in Supriyo v. Union of India, which denied same-sex marriage legal recognition and instead referred the case to Parliament. Nevertheless, notwithstanding this defeat, the dissenting opinion expressed by Justices Chandrachud and Kohli offers some hope. Their dissenting opinion, which vehemently maintained that Section 4(c) of the Special Marriage Act violates the rights of same-sex couples and that the ability to marry is in fact a basic right, offers hope. Their viewpoint raises the prospect that the Supreme Court may change its mind and move to legalize same-sex marriage in India in the future.
The dissenting opinions of Justices Chandrachud and Kohli serve as a reminder that the battle for equality and LGBTQ+ rights in India is still ongoing, and that there may be a way to move the nation toward a more accepting and progressive position on same-sex marriage, even though the majority opinion produced a depressing result.
On the one hand, it is unfortunate that the majority decided against legalizing same-sex marriage. There are several issues with the majority’s logic. First, the Indian Constitution does not support the majority’s assertion that the right to marry is not a basic right. Second, it is deceptive for the majority to assert that same-sex couples have additional legal alternatives at their disposal. Same-sex couples do not have the same legal rights and protections in civil partnerships or live-in relationships as they do in marriage. However, Justices Chandrachud and Kohli’s dissenting opinion presents a compelling and well-supported case for same-sex marriage.
CONCLUSION
Overall, the ruling in Supriyo v. Union of India by the Supreme Court is conflicting. The dissenting opinion offers optimism that the Supreme Court may eventually allow same-sex marriage in India, despite the fact that it represents a setback for the LGBTQ+ population there.
NAME- AOUN ULLAH KHAN
INSTITUTION- ALIGARH MUSLIM UNIVERSITY