Menu

Case Comment Supriyo @ Supriya Chakraborty & Anr. v. Union of India & Ors.

Case Comment, Publications


Citation: (2023) SCC (Supreme Court of India)
Bench: Hon’ble Chief Justice of India Dr. D.Y. Chandrachud, Hon’ble Justice Sanjay Kishan Kaul, Hon’ble Justice S. Ravindra Bhat, Hon’ble Justice Hima Kohli, and Hon’ble Justice P.S. Narasimha

1. Facts

The case arises out of petitions filed before the Supreme Court of India seeking legal recognition of same-sex marriages under various Indian statutes, primarily the Special Marriage Act, 1954 (SMA), the Hindu Marriage Act, 1955, and other personal and secular marriage laws. The petitioners, representing individuals from the LGBTQ+ community, argued that the non-recognition of queer marriages violates their fundamental rights guaranteed under the Constitution of India.

The case brings to the fore a tension between constitutional values of equality, dignity, and liberty and the absence of statutory recognition of same-sex relationships. The petitioners contended that exclusion from the institution of marriage deprives queer couples of rights related to inheritance, adoption, maintenance, taxation benefits, and medical decision-making, thereby subjecting them to systemic discrimination.

Background:
India’s LGBTQ+ movement gained legal traction with the landmark decision in Navtej Singh Johar v. Union of India (2018), wherein the Supreme Court decriminalized consensual same-sex relationships by striking down Section 377 of the IPC. However, the present case sought not only decriminalization but affirmative recognition of same-sex marriages, demanding a broader interpretation of marriage laws in alignment with constitutional morality.

Petitioners: The petitioners included individuals in committed same-sex relationships who faced legal and societal disadvantages due to the absence of marital recognition. They argued that queer individuals were denied basic entitlements available to heterosexual married couples.

Respondents: The Union of India opposed the petitions, asserting that marriage as an institution is defined by the legislature and rooted in customs that have historically applied to heterosexual couples. The government further argued that judicial intervention in this matter would amount to judicial overreach and breach the doctrine of separation of powers.

2. Issues Raised

  1. Does the non-recognition of same-sex marriages violate Articles 14, 15, 19, and 21 of the Constitution of India?
  2. Can the Court reinterpret the Special Marriage Act, 1954, in a gender-neutral manner to include same-sex marriages?
  3. Whether there exists a fundamental right to marry under the Indian Constitution?
  4. Does the exclusion of same-sex couples from adoption laws and social welfare schemes violate constitutional guarantees of equality and dignity?
  5. Can the judiciary direct the creation of a statutory framework for queer marriages, or is it a matter to be addressed by the legislature?

3. Contentions

Arguments of the Petitioners

  1. Violation of Equality and Non-Discrimination:
    • The petitioners argued that excluding same-sex couples from marriage rights amounts to discrimination under Articles 14 and 15 of the Constitution.
    • Marriage laws in India, such as the Special Marriage Act and the Hindu Marriage Act, implicitly operate on the binary concept of male and female, thereby excluding queer individuals.
    • Denial of marriage equality perpetuates stigma and institutionalizes queer individuals as “second-class citizens.”
  1. Right to Dignity and Personal Autonomy:
    • Relying on Navtej Singh Johar and KS Puttaswamy v. Union of India (2017), the petitioners contended that the right to marry is integral to personal liberty, dignity, and autonomy protected under Article 21.
    • By denying marital recognition, the State interferes with the private lives of queer individuals and denies them the same dignity accorded to heterosexual couples.
  2. Adoption Rights and Socio-Economic Benefits:
    • The petitioners highlighted that queer couples face exclusion from adoption laws under Regulation 5(3) of the Adoption Regulations, which restricts joint adoption to married couples.
    • Exclusion further extends to succession laws, taxation benefits, medical decision-making, pension entitlements, and other socio-economic rights linked to marriage.
  3. Gender-Neutral Interpretation of SMA:
    • The petitioners urged the Court to interpret the Special Marriage Act in a gender-neutral manner, removing binary language and allowing for inclusive definitions of “spouse” and “partner.”

Arguments of the Respondents (Union of India)

  1. Judicial Overreach:
    • The government argued that marriage is a statutory right and a social institution, traditionally governed by laws enacted by the legislature. Any change to the legal framework must be addressed through democratic processes, not judicial declarations.
  2. Legislative Competence:
    • The Union contended that the issue involves a policy decision requiring legislative deliberation. Judicial recognition of same-sex marriages would infringe upon the doctrine of separation of powers.
  3. Societal Norms and Customs:
    • The respondents argued that marriage laws in India reflect cultural norms and values rooted in heterosexual unions. Extending marriage rights to queer individuals would require societal acceptance and wide-ranging legal reforms.
  4. Impact on Adoption Laws:
    • The government emphasized that adoption laws prioritize the best interest of the child, which is traditionally associated with a heterosexual married couple. Altering adoption regulations for queer couples would require thorough deliberation and societal consensus.

4. Decision

The Supreme Court delivered a split judgment in this case, with each judge issuing a separate opinion:

1. Chief Justice Dr. D.Y. Chandrachud

  1. Recognition of Queer Rights:
    • The Chief Justice affirmed that members of the LGBTQ+ community are entitled to constitutional protection, equality, and dignity. He recognized that queerness is natural and must not be subject to discrimination.
    • The Court acknowledged the historical injustices faced by queer individuals, emphasizing the State’s role in fostering inclusivity and non-discrimination.
  2. No Fundamental Right to Marriage:
    • While recognizing that marriage encompasses aspects of dignity and autonomy under Article 21, the Chief Justice held that the Constitution does not explicitly guarantee a fundamental right to marry.
    • However, the denial of legal recognition to same-sex relationships perpetuates discrimination and undermines equality.
  1. Civil Unions and Entitlements:
    • The Chief Justice directed the State to take proactive steps to recognize civil unions for same-sex couples and extend material benefits such as inheritance, pension, adoption, and joint bank accounts to queer couples.
  2. Adoption Rights:
    • The Court read down Regulation 5(3) of the Adoption Regulations to allow unmarried and queer couples to jointly adopt children, holding that the provision is violative of Article 14.

2. Justice Sanjay Kishan Kaul

  • Justice Kaul concurred with Chief Justice Chandrachud’s observations on the dignity and rights of the LGBTQ+ community.
  • He emphasized that marriage equality is a natural progression of constitutional values and that societal attitudes must evolve to reflect the principles of equality and liberty.

3. Justice S. Ravindra Bhat and Justice Hima Kohli

  • The dissenting opinion held that the judiciary cannot create a legal framework for queer marriages, as it falls within the legislature’s domain.
  • Justice Bhat acknowledged the need for State intervention to protect the rights of queer individuals but emphasized the limitations of judicial power in policy-making.

4. Justice P.S. Narasimha

  • Justice Narasimha echoed the view that marriage laws are within the legislature’s purview and rejected the notion of a judicially enforceable right to same-sex marriage.
  • However, he recognized the need for affirmative measures to address discrimination against the LGBTQ+ community.

5. Defects of Law

  1. Lack of Immediate Remedies:
    • While the Court recognized the constitutional rights of queer individuals, it fell short of granting immediate remedies or tangible legal recognition for same-sex marriages.
    • The directive to establish civil unions and extend material benefits lacks enforceability without legislative backing.
  2. Legislative Inertia:
    • The reliance on the legislature to enact laws recognizing same-sex marriages raises concerns, given the historical inertia and lack of political will to address LGBTQ+ rights.
  3. Ambiguity in Adoption Laws:
    • Although the Court struck down the discriminatory provision in the Adoption Regulations, the lack of clarity on eligibility and procedures for queer couples may create further legal uncertainty.
  4. Failure to Address Personal Laws:
    • The judgment primarily focused on secular marriage laws, such as the SMA, but failed to address the exclusion of same-sex couples under personal laws governing Hindu, Muslim, and Christian marriages.

6. Inference

The decision in Supriyo @ Supriya Chakraborty v. Union of India marks a significant step forward for the LGBTQ+ rights movement in India by affirming the principles of dignity, equality, and non-discrimination. However, the split judgment highlights the limitations of judicial power in addressing complex socio-legal issues such as marriage equality.

While Chief Justice Chandrachud and Justice Kaul recognized the need for legal frameworks to protect queer unions, the majority refrained from granting marriage equality, leaving the matter to the legislature. This deferment reflects a cautious approach to judicial activism but also underscores the urgency for legislative action.

Moving forward, the legislature must take proactive steps to:

  1. Recognize same-sex marriages or civil unions under a gender-neutral legal framework.
  2. Extend adoption rights, inheritance, taxation benefits, and other entitlements to queer couples.
  3. Address exclusionary provisions under personal laws to achieve substantive equality for all individuals, regardless of sexual orientation.

The judgment reiterates the need for societal acceptance and legal reforms to achieve marriage equality. While the LGBTQ+ community’s struggle for equal rights continues, this decision lays the foundation for future progress toward a more inclusive and equitable society.

Kavya Sharma 

NMIMS- MUMBAI CAMPUS