CASE COMMENTARY

Supriyo @ Supriya Chakraborty & Anr.                                       … Petitioners

Versus

Union of India                                                                              … Respondent

Writ Petition (Civil) No. 1011 of 2022

FACTUAL MATRIX

On 14th November 2022, writ petitions were filed before the Hon’ble Supreme Court by two same-sex couples (hereinafter referred to as “Petitioners”) seeking legal recognition of same-sex marriages in India. These petitions were concerned with the constitutionality of the Special Marriage Act, 1954. (hereinafter referred to as the “Act”)

The main contention of the Petitioners was that Section 4(c) of the Act recognized marriage between a ‘male’ and a ‘female’ only, thereby denying the matrimonial benefits to same-sex or other queer couples.

Upon receiving the notice of the petition, the Union filed a Counter Affidavit opposing the same and claimed that ‘the notion of marriage itself necessarily and inevitably presupposes a union between two persons of the opposite sex’.

The case was initially referred to a 3-judge Bench and then to a 5-judge Bench led by Hon’ble Chief Justice of India, Mr D.Y. Chandrachud, Justice S.K. Kaul, Justice S.R. Bhat, Justice Hima Kohli and Justice P.S. Narasimha. After ten intense days of arguments, the Supreme Court reserved the judgment in the matter on 11th May 2023 and the verdict of the same was pronounced on 17th October 2023.

ISSUES RAISED

ISSUE 1: Is there a fundamental right to marry?

ISSUE 2: Does the non-recognition of queer marriages by law violate LGBTQIA+ persons’ fundamental right to equality (Art. 14)?

ISSUE 3: Can LGBTQIA+ marriages be recognised under the Act?

ISSUE 4: Can the SC make a declaration recognising the right to marry for LGBTQIA+ persons?

ISSUE 5: Can ancillary rights such as adoption and the right to have joint bank accounts be granted to LGBTQIA+ couples without recognising their marriage?

ISSUE 6: Would legally recognising LGBTQIA+ marriages adversely impact child welfare?

CONTENTIONS

Issue 1: Is there a fundamental right to marry?

Contention of Petitioners: The learned Counsel for the Petitioners submitted that the Petitioners have a fundamental right to marry under Articles 14, 15, 19, 21 and 25 of the Constitution, and any exclusion or discrimination, as incorporated in Section 4(c) and other provisions of the Act is ultra-vires the Constitution.[1] The exclusion of the petitioners from the institution of civil marriage under the Act is inconsistent with the very object of the law, i.e., to facilitate any marriage between two Indians, irrespective of caste, creed or religion;[2]

Contention of the Respondent: The learned Counsels for the Respondent submitted that the Constitution did not recognize a right to marry. An expression of a person’s sexuality was protected under Article 19(1)(a) of the Constitution. However, marriage could not be traced to the right to freedom of expression or the right to form unions under Article 19(1)(c);   

Issue 2: Does the non-recognition of queer marriages by law violate LGBTQIA+ persons’ fundamental right to equality (Art.14)?

Contention of Petitioners: The learned Counsels for the Petitioners submitted that the non-recognition of queer marriages under the Act denies LGBTQIA+ persons equal protection from laws. Non-recognition of same-sex and gender non-conforming marriages causes prejudice against LGBTQIA+ persons and denies them rights under social welfare and beneficial legislation. Further, the Counsels also submitted that there existed no intelligible differentia between LGBTQIA+ and non-LGBTQIA+ persons. The classification in the present case was based only on the sexual orientation and gender identity of the parties to a marriage, which was constitutionally impermissible. Further, there was no rational nexus with the object sought to be achieved by the Act. The object of the Act was to provide a civil form of marriage for couples who could not or chose not to marry under their personal law. The exclusion of LGBTQ couples from the Act had no rational nexus with this object.

Contention of the Respondent: The learned Counsels for the Respondent submitted that there was an intelligible differentia in classifying unions into heterosexual and non-heterosexual partnerships because heterosexual couples sustain a society through precreation. The Transgender Persons Act also classified persons into homosexuals and heterosexuals and granted substantive rights to the members of the LGBTQIA+ community in furtherance of the mandate of substantive equality.

Issue 3: Can LGBTQIA+ marriages be recognised under the Act?

Contention of Petitioners: The learned Counsels for the Petitioners submitted that the Act intended to recognise freedom of choice and non-conventional marriages. Replacing the words ‘husband’ and ‘wife’ with the word ‘spouse’ for instance, would help recognise marriage rights to LGBTQIA+ couples under the Act.[3]

Contention of the Respondent: The learned Counsels for the Respondent submitted that the the Act was drafted to recognise inter-faith and inter-religious marriages between heterosexual couples. Recognising non-heterosexual marriages under this Act defeats the intent of lawmakers. Altering the SMA will have a ripple effect on over 160 other statutes. Only Parliament could affect this kind of change.

Issue 4: Can the SC make a declaration recognising the right to marry for LGBTQIA+ persons?

Contention of Petitioners: The learned Counsels for the Petitioners submitted that the fundamental rights of non-heterosexual persons were being violated, so the SC could make a declaration recognising LGBTQIA+ marriages. This might be a placeholder till Parliament makes the necessary legislative changes.

Contention of the Respondent: The learned Counsels for the Respondent submitted that legal recognition of LGBTQIA+ marriages required the creation of a new law. This was exclusively a legislative action. A declaration by the SC would breach the separation of powers doctrine.

Issue 5: Can ancillary rights such as adoption and the right to have joint bank accounts be granted to LGBTQIA+ couples without recognising their marriage?

Contention of Petitioners: The learned Counsels for the Petitioners submitted that marriage was not only a gateway to ancillary rights but also social recognition, security and protection from discrimination. Mere ancillary rights without marriage were not sufficient to ensure substantive equality for LGBTQIA+ persons.

Contention of the Respondent: The learned Counsels for the Respondent submitted that certain ‘administrative tweaks’ which were ‘legally permissible’ could be made to ensure ancillary rights were granted. Recognising the right to marry was not needed for this.

Issue 6: Would legally recognising LGBTQIA+ marriages adversely impact child welfare?

Contention of Petitioners: The learned Counsels for the Petitioners contended that LGBTQIA+ couples could adopt and provide a child with love, care and affection just as a heterosexual couple would and there were no material considerations to not allow them to raise a child. Denying them the right to parenthood simply because of their particular sexual orientation would be manifestly arbitrary and their right to fulfil societal obligations.

Contention of the Respondent: The learned Counsels for the Respondent submitted that a family of biologically heterosexual men and women as parents was the norm and best for child welfare, and anything else was an exception. 

RATIONALE

  1. No Fundamental Right to Marry – All the judges unanimously held that there was no fundamental right to marry. The Bench held that the Constitution did not expressly the right to marry as a fundamental right. It further held that the institution of marriage could not be elevated to the realm of fundamental rights based on the content accorded

to it by law.

  • Gender Neutral Interpretation of the Act – The Petitioners had sought to either hold the Act unconstitutional or delete words or phrases or add words or phrases that would save it from being declared void. However, the Bench unanimously held that if the Act was held unconstitutional for excluding same-sex couples from marriage, it would take India back to the pre-independence era where two persons of different religions and castes were unable to marry each other. The Bench further held that it could not read words into the provisions of the Act or other allied laws, as it would result in entering into the realm of the legislature. The exclusion of non-heterosexual couples from the fold of the Act could not be held to have resulted in ceasing to have any rationale, and thus becoming discriminatory in operation.[4]
  • Transgender and Intersex Persons’ Right to Marry – During the course of arguments, Mr Tushar Mehta, the Solicitor General had assured that the Union Government will constitute a Committee chaired by the Union Cabinet Secretary to define and elucidate the scope of the entitlements of queer couples who are in unions. Taking note of this assurance, the Court directed that the Committee undertake this exercise after taking into consideration the views of the concerned representatives of all stakeholders, and all States and Union Territories and that the report of the Committee chaired by the Cabinet Secretary shall be implemented at the administrative level by the Union Government and the governments of the States and Union Territories.[5]
  • Right to Enter into Union – While the minority view observed that though there was no fundamental right to marry, there was a right to freedom to enter into a union, the Majority view was that the recognition of a union akin to marriage was the realm of the legislature and not the Court.[6]
  • Adoption Rights – The Majority held the right of unmarried couples (including queer couples) to jointly adopt a child was left to the legislature and executive to determine while the Minority read down the CARA Regulations to exclude ‘marital’ and allowed unmarried couples (including queer couples) to jointly adopt a child.

DEFECTS OF LAW

The Supreme Court of India’s judgment in the case of Supriyo v Union of India (2023) has been criticized for several defects of law. These defects include:

1. Failure to uphold the right to equality under Article 14 of the Indian Constitution: The Court’s decision to deny same-sex couples the right to marry was seen as a violation of the fundamental right to equality enshrined in Article 14 of the Indian Constitution. The Court failed to provide adequate justification for its decision to distinguish same-sex couples from heterosexual couples in the context of marriage.

2. Narrow interpretation of the right to privacy: The Court’s interpretation of the right to privacy, as recognized in the landmark judgment of Navtej Singh Johar v Union of India (supra), was considered to be overly narrow. The Court failed to apply the full scope of the right to privacy to protect the intimate relationships and personal choices of same-sex couples.[7]

3. Reliance on outdated social and biological arguments: The Court’s reliance on outdated social and biological arguments to justify its decision was criticized as being unscientific and discriminatory. The Court failed to recognize the evolving understanding of gender and sexuality and the growing acceptance of same-sex relationships in India.

4. Failure to provide effective remedies: The Court’s decision to direct the Government of India to form a committee to examine the issue of same-sex marriage was seen as an inadequate remedy. The Court failed to provide clear and enforceable guidelines for the committee’s work and failed to set a timeframe for the completion of its task.

5. Failure to recognize the lived realities of same-sex couples: The Court’s decision failed to take into account the lived realities of same-sex couples in India. The Court did not adequately address the discrimination and marginalization faced by same-sex couples in various aspects of their lives, including inheritance, adoption, and social recognition.

INFERENCE

The Supreme Court of India’s landmark judgment in Supriyo v. Union of India, pronounced on October 17, 2023, was a significant step forward in the recognition of LGBTQIA+ rights in India. While the court did not uphold same-sex marriage as a fundamental right under Article 15 of the Constitution, it made several groundbreaking pronouncements that affirmed the equal rights and dignity of LGBTQIA+ individuals.

Key inferences of the judgment:

  1. Right to Privacy and Autonomy: The court reaffirmed the right to privacy and autonomy as fundamental rights under Article 21 of the Constitution, extending them to LGBTQIA+ individuals. This recognition affirms their right to make personal choices about their relationships and gender identity.
  2. Transgender Rights: The court upheld the Transgender Persons (Protection of Rights) Act, 2019, recognizing the rights of transgender individuals to self-determination and legal recognition of their gender identity. This recognition is crucial for their access to education, employment, and other social and economic rights.[8]
  3. Non-discrimination: The court emphasized the principle of non-discrimination under Articles 14 and 15 of the Constitution, prohibiting discrimination based on sexual orientation and gender identity. This principle is essential for ensuring equal opportunities and treatment for LGBTQIA+ individuals.
  4. Special Marriage Act: The court acknowledged the need for legislative reform to extend the Act to same-sex couples. This recognition paves the way for future legal challenges and potential changes in marriage laws.

While the judgment did not explicitly legalize same-sex marriage, it created a strong foundation for future legal battles and legislative reforms. The court’s recognition of the rights and dignity of LGBTQIA+ individuals is a significant step toward achieving equality and justice for this marginalized community.


[1] Navtej Singh Johar v Union of India, 2018 1 SCC 741

[2] National Legal Service Authority v Union of India (2014) 6 SCC 1

[3] Section 4(c) of the Special Marriage Act, 1954

[4] State of Madras v V. Gopalkrishnan (1970) 2 SCC 297

[5] The Transgender Persons (Protection of Rights) Act, 2019

[6] Anuj Dhar v Union of India (2017) 8 SCC 616

[7] Shreya Singhal v Union of India (2015) 5 SCC 242

[8] Suresh Kumar Koushal v. Naz Foundation Trust (2014) 5 SCC 1

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