CASE COMMENT: Supriyo V. Union of India
DATE OF JUDGEMENT: October 17, 2023
PETITIONER: Supriyo a.k.a. Supriya Chakraborty, Abhay Dang, Parth Phiroze Mehrotra, Uday Raj Anand
RESPONDENT: Union of India
BENCH: CJI D.Y. Chandrachud, Justice S.K. Kaul, Justice S.R. Bhat, Justice Hima Kohli, Justice P.S. Narasimha
CITATIONS: W.P. (C) No. 1011/2022 Diary No. 36593/2022
The respondents Supriya Chakraborty and Abhay Dang filed a petition in the Supreme Court on 14 November, 2022 seeking legal recognition of their marriage. The two-judge bench of Chief Justice of India (CJI) D.Y. Chandrachud and Justice Hima Kohli, acknowledged their petition along with the petition from another gay couple, Parth Phiroze Mehrotra and Uday Raj Anand. The Supreme Court later directed high courts to transfer nine similar petitions to the Supreme Court to decide along with the original petitions.
Majority of the petitioners also pleaded that the secular marriage laws brought up unwanted interferences in marriage and hence several petitions challenged the constitutional validity of the secular marriage laws. The petitioners also contested that these laws infringed the fundamental rights such as right to equality, right of expression and several human rights.
Two landmark judgements were cited by the petitioners to support their case, NALSA V. Union of India and Navtej Singh Johar V. Union of India.
On 13 March 2023 a three-judge bench led by CJI D.Y. Chandrachud referred the case to a constitutional bench of five judges. The 5-judge constitutional bench secured the judgement to the case on 11 May, 2023. 17 October, 2023 marked the day when the verdict was pronounced by the Supreme Court.
ISSUES RAISED
- Does the Constitution guarantee the right to marry as a Fundamental Right?
- Is the Supreme Court empowered to form legislation and allow legal validity to same sex marriages?
- Are the existing legislations with regards to marriage in the country unconstitutional?
CONTENTIONS
Contentions by the Petitioners:
- The petitioners contested that the marriage laws, namely, the Special Marriage Act, 1954 and the Foreign Marriage Act, 1969, violated the fundamental rights of couples from sexual and gender minority communities. Several sections and clauses and of the above mentioned acts were highlighted by the petitioners, arguing them to be unconstitutional. Article 32 of the Indian Constitution grants Supreme Court the power to safeguard the Fundamental Rights, the petitioners presented themselves before the court invoking the same.
- The petitioners also raised an issue stating the present legislations regarding marriage do not expressly state any provisions regarding same sex marriages.
- The petitioners relied on the landmark judgements of the Hon’ble Supreme Court in NALSA V. Union of India, Puttaswamy V. Union of India and Navtej Singh Johar V. Union of India, both of which recognised the sexual and gender minority communities and guaranteed them with equal rights.
- The petitioners cited the Supreme Court’s approach of scrapping any law that failed to protect an individual’s sexual orientation and gender identity; such a law would be considered violative of Article 14. Non-recognition of atypical families shall also violate Article 14 among several other fundamental rights.
The Respondents Contented:
- The respondents argued that none of the Acts mentioned by the petitioners are unconstitutional just because they are underinclusive of marriages between non-heterosexuals. The Acts mentioned by the petitioners under their contentions govern marriages between heterosexual individuals, they court cannot read into words just to expand its views beyond what was originally conceptualised.
- All regulations concerning marriages, divorce, adoptions, and more fall under the ambit of the Legislature. Regulating same sex marriages shall violate all other present legislations regarding marriages.
- The Constitution of India does not specifically recognise the right to marry as a fundamental right. Article 21 only recognises the right to choose a partner. This does not imply that there is a right to marry.
- Granting non-heterosexual couples rights to marry would create conflicts with religion where marriage is considered to be a sacred relationship between two heterosexual individuals.
RATIONALE
The Supreme Court is empowered to hear this case under Article 32 which states, “the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III is guaranteed and the Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by Part III”.
The decision was made in a 3:2 majority, where the majority of three judges refused to legally recognise same sex-marriages.
According to the Article 245 and 246 of the Constitution the power has been granted to the Parliament and State legislatures to form regulations and statutes with regards to matters relating to marriage, divorce, adoption, among several others. The issue of the Constitution recognising the right to marry did not arise in previous cases of Puttaswamy, Shafin Jahan and Shakti Vahini. The Constitution does not expressly recognise a right to marry. An institution such as marriage cannot be elevated to the level of a fundamental right. The court cannot read into the words of the Special Marriage Act, Foreign Marriage Act and other legislations within this matter since these matters fall into the domain of the Legislature and doing so would amount to judicial overreach.
The court in its decisions in Navtej Singh Johar and Puttaswamy recognised the rights of the queer community to enter into a union, any legislation forbidding the same shall be violative of Article 15 of the Constitution. The state’s inability to recognise the benefits that come through a union would result in a drastic impact on the queer community who cannot marry under the current regime.
The court also directed the Union Government to form a committee under the chairmanship of Cabinet Secretary for the purpose of defining and interpreting the scope of benefits available to queer couples who are in unions. The Committee shall include experts with knowledge about social, emotional and psychological needs of individuals of queer community along with members of queer community. An exhaustive consultation must be done by the Committee amongst individuals from the LGBTQIA+ community along with the governments of States and Union Territories before finalising its decision. The report of the Committee shall be implemented by the Union Government as well as the governments of State and Union Territories on administrative levels.
The minority opinions of CJI D.Y. Chandrachud and Justice Hima Kohli held contrary viewpoints. Both of the hon’ble judges had a similar view regarding recognition of the right to marry as a fundamental right. They also contended that non-heterosexual couples should be able to enjoy the same marital benefits as their heterosexual counterparts, denying them similar rights would be a violation of their fundamental rights.
DEFECTS OF LAW
Under the current legal regime, same sex marriages do not fall under the ambit of any existing legal provisions. This not only is discriminatory but also violates the freedom of the queer community to enjoy a happy matrimonial life. The court’s decision is not only restrictive but also does not finalise or grant any relaxation to the LGBTQIA+ community with regards to recognition of marriages.
However, if looked from a different standpoint it can be said that the court did not overreach its jurisdiction and remained within its boundaries. The court’s decision upholds the doctrine of separation of power.
INFERENCE
The awareness about the rights of LGBTQIA+ community has seen a significant rise in the past decade. Several landmarks judgements have been made by the Supreme Court recognising their rights. However, there is still a long road that needs to be travelled to ensure that the queer community enjoys the same rights as heterosexual individuals.
The Committee formed by the Supreme Court will play a significant role in deciding what the future holds for the queer community in India.