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CASE: Supriyo @ Supriya Chakraborty & Anr. Vs Union Of India

Case Comment, Publications

CITATION: Writ Petition (Civil) No. 1011 of 2022

Date of Judgment: October 17, 2023

PETITIONERS: Supriyo @ Supriya Chakraborty & Anr.

Respondent: Union of India

BENCH: CJI D.Y. Chandrachud, J. S.K. Kaul, J. Ravindra Bhat, J. Hima Kohli & J. P.S. Narasimha

LEGAL PROVISIONS: Articles 14, 15, 19, 21, and 25 of the Indian Constitution, Special Marriage Act of 1954, Hindu Marriage Act of 1955, Foreign Marriage Act of 1969

INTRODUCTION: 

The case of Supriya Chakraborty and Others v. Union of India represents a watershed point in India’s legal landscape. Beyond its immediate ramifications in terms of reproductive rights and personal autonomy. This case impacted larger cultural narratives and legal paradigms, notably those governing marital standards and LGBTQ+ rights. Its impact spread well beyond the courts, igniting a cultural and legal change that has begun to reshape the traditional conception of marriage.

BACKGROUND:

Some earnest attempts have been made by LGBTQ+ persons and couples in India to get their relationships accomplished. In January 2020, Nikesh and Sonu approached the Kerala High Court when Justice Anu Sivaraman of the court allowed the petition of the couple. In September 2020, Abhijit Iyer Mitra, Gopi Shankar M, Giti Thadani, and G. Oorvas filed a similar motion before the Delhi High Court, where it was granted by the Chief Justice D.N. Patel and Justice Prateek Jalan. Passing an order on the motion filed by Supriya Chakraborty and Abhay Darn, who moved the top court along with Parth Phiroze Mehrotra and Uday Raj Anand in November 2022, Chief Justice of India D.Y. Chandrachud and Justice Hima Kohli said it is clear that the commission is both interested party and judge. The High Court enabled the transfer of nine petitions of same nature from high courts to it. On March 15, 2023 the High Court allowed 20 connected petitions of 52 sexual and orientation minority individuals and 17 couples. The bulk of the solicitors pressed for treatment under general domestic relations statutes, challenging the notice and complaint requirements as legally suspect. Some practicing Hindus also argued not to be kept out of the purview of Hindu Marriage Act saying it limited their religious orthodoxy. There were a number of intervenors due to which a clutch of supporters had jumped in but true representation had come only after the court appointed Advocate Arundhati Katju as Nodal Counsel for the petitioners and Kanu Agrawal was appointed Nodal Counsel for the respondents.   Senior advocate R. Venkataramani, who represents head legal officer and Solicitor General Tushar Mehta represented the State.

FACTS:

  • The two same-sex couples, who filed writ suit at the High Court on 14 November 2022, have been highlighted in this case since early 2023. 
  • The case was argued by the lead counsels Supriyo Chakraborty and Abhay Darn The subsequent appeal was recorded by Parth Phiroze Merhotra and Uday Raj Anand.
  • The petitioners argued that Section 4 (c) of the Special Marriage Act of 1954 [1] is unconstitutional insofar as it discriminates against same-sex couples, by, among other things, depriving them of such rights as inheritance, surrogacy, and pension and retirement benefits. Under the supervision of the High Court, the High Court submitted comparable petitions against itself. 
  • Several Petitions were filed to challenge the authorizations, such as the Foreign Marriage Act of 1969 and the Hindu Marriage Act of 1955. After a 10-day hearing period, the 5-judge Seat reserved its decision on May 11, 2023. The verdict on petitions seeking marriage equality for LGBTQIA+ individuals was issued by the 5-Judge Seat on October 17, 2023.

ISSUES RAISED:

  1. Whether the Supreme Court has the power to hear this case?
  2. Does a Fundamental Right to marry exist?
  3. Do queer couples have the right to marry? 
  4. Is the Special Marriage Act, of 1954 unconstitutional?
  5. Can the right to marry by queer be read into the provisions of the Special Marriage Act, 1954 by purposive interpretation?
  6. Can unmarried and queer couples adopt?
  7. Can transgender persons in heterosexual relationships marry under existing laws?

CONTENTION BY PETITIONER:

  • The petitioners argued that the Constitution guarantees the fundamental right to marry an individual of one’s own choosing, as enshrined in Articles 14, 15, 19, 21, and 25. They further argued that any prohibition or segregation, as consolidated in Section 4(c)[2] and various arrangements of the SMA, is a violation of the Constitution. Articles 14, 15, 19, 21, and 25 are violated when their right to marry is denied. Article 21 safeguards the right to happiness, which encompasses a fulfilling relationship with an individual of one’s own choosing.
  • Each individual is entitled to marry the individual of their choosing. This freedom is equally accessible to queer individuals. The SMA should be interpreted in a manner that is gender-neutral. Gendered nouns such as “husband” and “wife” should be translated as “spouse.” The statute expands the definitions of “family” and “household” to encompass more than just a “biological” man and woman and their offspring. LGBTQ couples are denied the opportunity to establish a family due to the fact that surrogacy and adoption are exclusively available to married couples.
  • It denies LGBTQIA+ individuals equal protection under the law. The non-recognition of same-sex and gender-nonconforming marriage discriminates against LGBTQIA+ individuals and denies them rights under social welfare and benefit legislation. It is manifestly unreasonable to exclude LGBTQIA+ individuals from the SMA. LGBTQIA+ companions are not excluded from the institution of marriage for any legitimate or acceptable reason. 
  • There is no constitutionally recognized, meaningful distinction between LGBTQIA+ and non-LGBTQIA+ individuals. The categorization in this case is constitutionally prohibited, as it is wholly based on the sexual orientation and gender identity of the parties to a marriage. Additionally, there is no logical connection to the SMA’s desired outcome. 
  • The SMA is designed to provide a civil form of marriage for couples who are either unable or unwilling to marry under their personal law. This objective is not reasonably associated with the exclusion of LGBTQ spouses from the SMA.

CONTENTIONS BY RESPONDENT:

  • The interpretive technique of reading-in may be employed by the courts only when the stated objective of the legislation is not achieved. This Court is unable to interpret the enactment in a manner that would expand its scope beyond the original intent, as the purpose of SMA is to regulate heterosexual marriages.
  • The freedom to marry is not acknowledged by the Constitution. A person’s expression of sexual orientation is safeguarded by Article 19(1) (a) of the Constitution. Nevertheless, the right to free expression and the right to establish partnerships are not associated with marriage in accordance with Article 19(1)(c).
  • Legal recognition of all relationships is not mandatory for the State. The state only recognizes connections when there is a legitimate governmental interest. The State has a legitimate interest in legally recognizing heterosexual unions in order to ensure the survival of society.
  • The courts are not authorized to determine whether a non-heterosexual relationship should be recognized as legal. The legislature, who are the designated representatives of the public, is responsible for resolving this issue.

RATIONALE:

  • The Hon’ble Supreme Court did not address the issue of whether the Constitution recognizes the freedom to marry in Justice KS Puttaswamy, Shafin Jahan, and Shakti Vahini. 
  • Nevertheless, the verdicts in Navtej (above) and Justice KS Puttaswamy (9J) (supra) recognize the autonomy of LGBT couples in determining the nature of their relationship. This relationship is protected from external threats. 
  • Discrimination on the basis of sexual orientation is prohibited by Article 15. Medical practitioners are required to consult with family members, next of kin, or next companions if terminally ailing patients have not completed an Advance Directive, as per the ruling in Common Cause v. Union of India, as modified by Common Cause v. Union of India. For this purpose, parties involved in a union may be considered “family.”
  • The Hon’ble Supreme Court was unable to either invalidate the constitutional legality of the Special Marriage Act (SMA) or interpret its provisions as a result of its institutional constraints. The Court must refrain from addressing matters that are within the legislative domain, particularly those that affect policy, when exercising its judicial review power. In order to further elaborate on this subject, the subsequent elements may be examined:
  • The Right to Marry and Establish a Family: The right to marry is a fundamental right that is closely associated with the rights of autonomy, dignity, and privacy.

The Supreme Court has acknowledged the autonomy of individuals to select their partners and establish intimate relationships, irrespective of their sexual orientation, in its landmark judgments.

Nevertheless, the Court did not explicitly address the specific question of the constitutional validity of the SMA in regards to the recognition of same-sex marriages.

  • Equal Protection and Non-Discrimination:

According to Article 15 of the Constitution, discrimination is prohibited on the basis of a variety of factors, including their sexual orientation.

The Court has reaffirmed the necessity of upholding the principles of equal protection and non-discrimination in all aspects of life, including the right to marriage and family life.

The denial of the right to marry to same-sex couples could be interpreted as a form of discrimination based on sexual orientation, which may be in violation of the Constitution’s principles of equality.

  • Judicial Restraint and Separation of Powers: The Court has recognized the constraints of its institutional function and the necessity of upholding the separation of powers between the judiciary and the legislature.

The Court is capable of interpreting laws and invalidating unconstitutional provisions; however, it is prohibited from enacting judicial legislation by either inserting or modifying language in existing statutes.

The Court has acknowledged that the legislature is responsible for matters involving intricate policy decisions and legislative amendments, and the judiciary should exercise caution in these instances.

  • The Function of the Legislature:

The Supreme Court has stated that the legislature is responsible for the recognition of same-sex marriages and the amendment of pertinent laws, including the SMA, the Indian Succession Act (ISA), and the Hindu Succession Act (HSA).

The Court has urged the legislature to take into account the rights and concerns of the LGBTQ+ community and implement the necessary legislative measures to resolve these issues.

The legislature has the capacity to engage in exhaustive discussions, assemble diverse perspectives, and enact laws that are reflective of the changing societal values and constitutional principles.

The Supreme Court has acknowledged the limitations of its institutional role and the necessity of legislative action to comprehensively address the issue of same-sex marriages and related legal aspects, while also acknowledging the fundamental rights of LGBT individuals and the principles of non-discrimination.

JUDGEMENT:

  • The justices unanimously determined that there is no immutable right to marriage, and same-sex couples are unable to assert it as a fundamental right. The challenge to the clauses of the Special Marriage Act was also unanimously dismissed by the Supreme Court.
  • The civil unions of same-sex couples are not legally recognized, and they are unable to claim the right to adopt children, according to the majority of justices.
  • A comprehensive examination of the considerations associated with same-sex marriage will be conducted by a high-powered committee (HPC) that is chaired by the Cabinet Secretary and established by the Central Government. This committee will consider the perspectives of all stakeholders, states, and union territories. The legislative body’s intention in formulating these laws was never for them to apply to any connection other than heterosexual couples, as evidenced by the terminology used in the provisions thereof, such as “woman,” “a couple,” and “in the case.” The phrases employed are unambiguous, enabling a single potential interpretation. The court should not pursue a development that would undermine the purpose of marriage or broaden the definition of marriage to encompass classifications that were never intended to be included. Consequently, this decision has garnered significant attention and generated public interest. 

INTERFERENCE:

1. The Supreme Court’s judgment in this case has far-reaching implications for the LGBTQ+ community and their fight for equal rights, particularly in the context of marriage and family life.

2. The Court’s acknowledgment that the verdicts in Navtej and Justice KS Puttaswamy recognize the freedom of LGBT couples to form relationships and that these relationships are safeguarded from external dangers is a significant step forward.

3. However, the Court’s inability to strike down the constitutional validity of the Special Marriage Act (SMA) or read words into it due to institutional constraints highlights the limitations of judicial intervention in matters that require legislative action.

4. The Court’s recognition that Article 15 prohibits discrimination based on sexual orientation and that parties in a union can be deemed ‘family’ for certain purposes is a positive development, but it falls short of granting full legal recognition to same-sex marriages.

5. The Court’s decision to refrain from engaging in judicial legislation by inserting or modifying words in existing statutes, such as the SMA, the Indian Succession Act (ISA), and the Hindu Succession Act (HSA), underscores the need for the legislature to take proactive steps to address the issue of same-sex marriages and related legal aspects.

6. The Court’s call for the legislature to consider the rights and concerns of the LGBTQ+ community and take appropriate legislative measures is a clear indication that the onus lies on the elected representatives to enact laws that reflect the evolving societal values and constitutional principles.

7. The Court’s decision to constitute a high-powered committee (HPC) led by the Cabinet Secretary to conduct a thorough examination of considerations related to same-sex marriage, taking into account the perspectives of all stakeholders, states, and union territories, is a significant development. However, the effectiveness of this committee and its recommendations remains to be seen.

8. The Court’s observation that the legislative intent behind existing laws like the SMA was never intended to apply to any connection other than heterosexual couples highlights the need for comprehensive legislative reform to address the issue of same- sex marriages and related rights.

9. The judgment’s emphasis on the separation of powers and the need for judicial restraint in matters involving complex policy decisions and legislative amendments underscores the importance of a collaborative approach between the judiciary, the legislature, and the executive in addressing matters of social and legal significance.

10. While the judgment may not have provided the desired outcome for the LGBTQ+ community in terms of immediate legal recognition of same-sex marriages, it has opened the door for further dialogue, public discourse, and legislative action to address this issue in a comprehensive and inclusive manner.

11. Overall, the interference in this case highlights the complex interplay between constitutional rights, judicial interpretation, legislative intent, and the need for a holistic approach to address the issue of same-sex marriages and related rights in India.

Author :- Drishya Asrani
College- NMIMS , Navi Mumbai