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CASE COMMENT: “SUPRIYO CHAKRABORTY & ANR V. UNION OF INDIA” 2023 INSC 920

Case Comment, Publications

CASE NUMBER – W.P. (C) No.-001011 – 2022

PETITIONER – Supriyo @ Supriya Chakraborty & Anr.

RESPONDENTS – Union of India

BENCH – Hon’ble Chief Justice of India D.Y.  Chandrachud, Hon’ble Mr. Justice Sanjay Kishan Kaul, Hon’ble Mr. Justice S. Ravindra Bhat, Hon’ble Ms. Justice Hima Kohli, Hon’ble Mr. Justice Pamidighantam Sri Narasimha

DATE OF JUDGEMENT – 17 OCTOBER 2023

FACTS – The petition revolves around the contentious issue of Same-sex marriage in India. The petitioners Supriyo Chakraborty and Abhay Dang, representing the interests of 21 same-sex couples, submitted a Writ petition before the Hon’ble Supreme Court challenging the constitutional validity of section 4 (c) of under the Special Marriage Act, 1954 and seeking official recognition of same sex marriage. The Indian matrimonial code encompassing personal laws Hindu Marriage Act, Muslim Marriage Act and Secular Marriage Act (SMA), solely validate heterosexual unions between a man and a woman. Hence the petitioners prayed the Hon’ble court to declare section 4 (c)  of the act as unconstitutional and that the current legal framework infringes fundamental rights as enshrined in Articles 14, 15, 19(1)(a), and 21 of the Constitution. The Supreme Court, after a ten-day deliberation, referred the issue to a constitutional bench for further examination.

ISSUES RAISED –

  1. Do members of the LGBTQIA+ enjoy a fundamental right to marry under the Indian Constitution? If such a right is constitutionally protected, does it fall under the guarantees of Articles 14 (equality before the law), Article 15 (prohibition of discrimination), and Article 21 (right to life and personal liberty)?
  2. Do the Hon’ble Supreme Court has judicial authority to Recognize Marriage Rights and mandate its enforcement through existing or amended legal provisions?
  3. Does the barring of same-sex marriages from the Special Marriage Act, 1954, constitute discrimination under Article 14 of the Indian Constitution by unjustly differentiating between heterosexual and same-sex couples in terms of legal recognition and rights?
  4. What will be the legal implications of recognizing same-sex marriages on established marriage, adoption, inheritance, Property ownership and other relevant legal codes? 

CONTENTIONS OF THE PETITIONER

  1. The existing Jurisprudential standards on LGBTQIA+ rights recognizes LGBTQIA+ as persons with dignity, equality, and privacy. Further there is no established constitutionally valid intelligible differentia between LGBTQIA+ and non-LGBTQIA+ persons. 
  2. The statement emphasizes that LGBTQIA+ persons should be recognized as individuals with the same fundamental rights as their heterosexual counterparts.
  3. Article 19 and 21 of the Constitution guarantees all persons the right to marry a person of their choice. Thus queer people like their heterosexual counterparts are equally entitled to the exercise of this right.
  4. The right to marry is seen as an extension of the fundamental right to privacy and personal liberty under Article 21.
  5. The SMA is violative of provisions enshrined under Article 14 of the Constitution by denying LGBTQIA+ persons from equal protection of the laws. 
  6. The Special Marriage Act violates the provisions enshrined under Article 15 of the Constitution by barring LGBTQIA+ persons from the SMA on the basis of their sexual orientation and the sex of their partner. 
  7. There is a lack of rational nexus within the objectives of the SMA – to provide a civil form of marriage for couples who cannot or choose not to marry under their personal law nor there is any ‘legitimate state interest’ in the denial.
  8. The terms “man” and “woman” in Section 2(b) of the SMA should be interpreted to include “any person,” thereby encompassing trans-men, trans-women, intersex, and non-binary individuals. This inclusive interpretation allows for the solemnization of marriages between non-heterosexual persons.
  9. Marriage should not be understood as a mere benefit or privilege. For it determines the very basis of a couple’s ability to fully participate in society. 
  10. Moreover grounds of constitutional morality put forth impulse on the organs of the state, including the judiciary, to preserve the heterogeneous nature of our society and encourage it to be pluralistic and inclusive.

CONTENTIONS OF THE RESPONDENT

  1. The institution of marriage is as old as the civilization. The concept is the hallmark of social acceptance. The law did not originally establish the heterosexual nature of marriage but merely regulated unions that were socio-historically recognized as heterosexual.
  2. Article 21 guarantees an individual to choose their partner nevertheless the legal recognition of this choice cannot be categorized as a fundamental right. 
  3. There is distinction between right to marry and right to privacy. The right to privacy protects individuals from state and societal intervention in their personal sphere of life and not the right to marry.
  4. When privacy rights intersects with the public sphere of life, the state may impose regulations for the broader community’s welfare – such as the count of partners or the minimum legal age for marriage.
  5. The mere usage of a gender-neutral term like “any two persons” cannot be considered as an intention to include non-heterosexual unions. This very interpretative tool of “reading-in” implies interpreting meaning of the text of the statute without altering its fundamental terms. 
  6. Article 142 of the Indian constitution empowers the Courts to lay down procedural guidelines for redress rather than creating substantive rights or obligations. The doctrine of separation of powers prevents the court from enacting specific laws or directing the legislature.
  7. There are no evidences presented which ensure children born out of such marriage would be equally well-protected and cared for by non-heterosexual parents hence suggest a violation of the article 21 of the constitution guarantying hat every child will have the best upbringing. 
  8. Moreover children born to heterosexual couples are naturally adapted and hence seek family environments similar to their birth families.
  9. The principle of non-discrimination cannot be said to be breached if the law is not comprehensive. Given the diversity of the LGBTQIA+ community it cannot be considered a homogeneous group. Hence the Court cannot address the varied interests within this community effectively. 
  10. Moreover grant of legal recognition to non-heterosexual unions would call for extensive amendments to multiple laws which the legislature would handle best.

RATIONALE

 The Supreme Court ruled that marriage is not a fundamental right under the Indian Constitution and upheld the provisions of the Special Marriage Act as constitutional. 

The Court recognized the rights of non-heterosexual couples to live with dignity and privacy and issued a list of guidelines to secure LGBTQIA+ individuals from discrimination and harassment.  Creation of a modern category of civil union constitutes judicial legislation which violates the doctrine of separation of powers laid in the constitution.

 The right of LGBTQIA+ individuals to live their life with dignity and respect was championed by all the judges. 

Justices D.Y. Chandrachud and S.K. Kaul defended the call for same-sex couples to provide legal protection while maintaining existing marriage laws while other found it outside the purview of the judiciary.  

DEFECTS OF LAW 

  1. The definition of marriage under SMA, defines it as a union between a man and a woman thereby discriminating against same-sex couples and failing to offer legal recourse or recognition for same-sex unions – hence propagating an outdated view that does not align with modern understandings of equality and human rights.  
  2. Such decisions constrains the role of judiciary to interpretation and analysis of existing laws in a manner consistent with constitutional principles, however it cannot legislate new rights or institutions. This vacuum in law questions the commitment of the constitution to protect its citizens equally. 
  3. The Court’s purview excluding marriage as a fundamental right under the Constitution does not address the broader implications for equality, non-discrimination, personal autonomy and freedom as guaranteed under Articles 14, 15, and 21.
  4. Furthermore the restriction on adoption rights for non-heterosexual couples, as upheld by the Court, reflects a discriminatory stance based on assumptions about parenting capabilities. This approach perpetuates stereotypes and fails to acknowledge that parenting quality is not inherently linked to sexual orientation but rather to the individual’s ability to provide a stable and nurturing environment. 
  5. The stance of upholding traditional views on marriage accepting heterosexual unions as the standard portray a sense of resistance and prejudice with the evolving societal understanding of family system.
  6. To effectively address these defects comprehensive legislative reforms in marriage laws is required whereby due recognition is given to non-heterosexual unions and equal rights in areas of adoption and inheritance. 

INFERENCE 

The Supreme Court’s ruling on same-sex marriage highlights the woven intricacies encompassing legal and social dimensions of the issue. The court stipulated marriage is not hailed as a fundamental right and that Legislature alone is capable of enacting a relevant matrimonial framework.  The decision entails a blend of both progress and limitation – the affirmation of upholding the the dignity of same-sex couples and condemnation of discrimination and the refusal to recognize same-sex marriages under existing laws. 

The ruling also acknowledges the historical presence of LGBTQIA+ individuals in Indian culture and supports ongoing dialogue for legal and societal change. The judgement is a fine example of maintenance of constitutional principle of separation of powers and paves the way for continued advocacy and legislative reform.

Diya Pabbi, Asian Law College