INTRODUCTION
The case of Supriyo & Anr. vs. Union of India (2023) is a significant legal case concerning the recognition of same-sex marriages in India. Building on the Supreme Court’s historic ruling in Navtej Singh Johar and Ors. vs. Union of India (2018), which decriminalized consensual same-sex relationships by declaring Section 377 of the Indian Penal Code unconstitutional, this case aims to advance additional legal rights for the LGBTQIA+ community. The petitioners contended that the rejection of marriage rights under the Special Marriage Act (SMA) and the Foreign Marriage Act (FMA) violated their fundamental rights under Articles 14, 15, 19, 21, and 25 of the Indian Constitution, proclaiming that such exclusion was discriminatory and hampered their right to personal autonomy and equal protection.
The Supreme Court, recognizing the significant issues at stake, consolidated multiple petitions from various High Courts and heard the case before a Five-Judge Constitution Bench led by Chief Justice D.Y. Chandrachud. On October 17, 2023, the Court delivered its verdict, ruling that while the right to choose a partner is fundamental, the legal recognition of same-sex marriages must be addressed by the legislature. This decision highlights the ongoing need for legislative reforms to ensure equality and protection for LGBTQIA+ individuals in India.
FACTS
Supreme Court on September 6, 2018, in Navtej Singh Johar and Ors. v. Union of India case, declared Section 377 of Indian Penal Code (IPC) as unconstitutional, when it was about consensual sexual intercourse between queer individuals. The court adjudicated that section 377 contravened Articles 14,15 and 19 of the Constitution as it discriminated on the basis of sexuality and inhibit upon the right to sexual privacy. This judgement affirmed numerous constitutional rights for the queer community, including the rights to sexual privacy & dignity and the right to autonomy in choosing one’s partner.
Following the case, various petitioners approached different High Courts across India, requesting legal acknowledgment of marriage for LGBTQIA+ couples. They argued that the absence of such recognition led to discrimination and infringed upon their fundamental rights enshrined in the constitution. Additionally, the petitioners sought equal recognition to gain societal legitimacy and access to both implicit and explicit benefits provided by legally recognized marriages under the Special Marriage Act, 1955 (SMA) and the Foreign Marriage Act, 1969 (FMA). They claimed that the existing legal framework discriminates against the LGBTQIA+ community by excluding them from the institution of marriage. To support their claims, they referenced landmark judgements such as Navtej Singh Johar vs. UOI (2018) and NALSA vs. UOI (2014) , which recognized non-binary gender identities and promised equal rights to homosexual persons.
On November 25th, 2022, a Supreme Court Bench comprising Chief Justice D.Y. Chandrachud and Justice Hima Kohli issued an order directing the Union to respond to the petitions. Concurrently, several similar petitions were also pending before the Delhi and Kerala High Courts.
On January 3rd, 2023, Senior Advocate Menaka Guruswamy and Advocate Karuna Nundy petitioned a 2-Judge Bench, including CJI Chandrachud and Justice P.S. Narasimha, to transfer related cases from the Delhi and Kerala High Courts to the Supreme Court. The request was approved, and the cases were set to be heard together with the main petition on January 6th, 2023.
On January 6th, 2023, a 3-Judge Bench, comprising CJI D.Y. Chandrachud, Justices P.S. Narasimha, and J.B. Pardiwala, combined nine pending petitions from the Delhi and Kerala High Courts into a single proceeding. This consolidation streamlined the process due to the shared legal issues and fundamental rights involved. The Supreme Court also took suo moto notice of the widespread discrimination and violence faced by the LGBTQIA+ community in India, acknowledging the broader implications of the cases.
The case was then taken up by a Five-Judge Constitution Bench on March 13, 2023, under the leadership of CJI D.Y. Chandrachud. The larger bench began hearings on April 18th, 2023, following CJI’s referral of the case. After ten days of hearings, the judgment was reserved on May 11, 2023.
On October 17, 2023, the Five-Judge Bench delivered its decision, ruling that there is no fundamental right to marry and that the Court could not extend the right to marriage for LGBTQIA+ individuals under the Special Marriage Act (SMA).
ISSUES
- Do LGBTQIA+ individuals have the right to marry?
- Does the exclusion of queer couples from marriage under the Special Marriage Act, 1954, constitute a violation of their right to privacy and dignity?
CONTENTIONS
CONTENTIONS BY PETITIONER
The petitioners argued that the fundamental right to marry a person of one’s choice is protected under Articles 14, 15, 19, 21, and 25 of the constitution. They asserted that any restrictions or prohibitions in Section 4(c) and other provisions of the Special Marriage Act (SMA) exceed constitutional powers. Denying them the right to marry constitutes a violation of Articles 14, 15, 19, 21, and 25.
Every individual, including the queer individuals, is entitled to marry someone of their choice. The Special Marriage Act (SMA) should be implemented in a gender neutral manner, and the terms like “husband” and “wife” should be read as spouse.
As surrogacy and adoption are only available to married couples, prohibiting queer couples from marrying effectively denies them the right to establish a family.
Denying LGBTQIA+ pstreamline ersons the right to marry denies them equal protection of the laws. Excluding LGBTQIA+ persons from the Special Marriage Act (SMA) is manifestly arbitrary.
The classification based on gender identity and sexual orientation is constitutionally impermissible.
CONTENTIONS BY RESPONDENT
Courts can only interpret laws to achieve their intended purpose. The purpose of Special Marriage Act (SMA) is to streamline heterosexual marriages, so the court cannot expand its scope beyond the original intent.
The constitution does not explicitly recognize the right to marry. While an individual’s expression of sexuality is protected under Article 19(1)(a) (freedom of speech and expression), marriage cannot be interpreted as a right to freedom of expression or the right to form associations under Article 19(1)(c).
The state is not obligated to legally recognize every type of relationship. It grants recognition to relationships where there is a legitimate state interest, and traditionally, the state’s interest has been in recognizing heterosexual relationships for the sustenance of society. The authority to decide on the legal recognition of non-heterosexual unions does not lie with the courts but should be determined by the legislature.
RATIONALE
Queerness is a natural phenomenon that has been recognized in India since ancient times. It is not limited to urban or elite populations. The concept of marriage is not universal and is constantly evolving. The authority to create and regulate laws regarding queer marriage rests with Parliament and the state legislatures.
The Constitution does not concede the right to marriage as a fundamental right. An institution cannot be elevated to the status of a fundamental right merely by the legal recognition it receives.
The Court cannot invalidate the constitutional validity of the Special Marriage Act (SMA) or modify its provisions due to its institutional constraints.
JUDGEMENT
The Five-Judge Bench of the Court unanimously decided that the right to marriage is not a fundamental right, distinguishing between the right to choose a partner and the right to marry. The Court reaffirmed its earlier rulings, emphasizing that while the right to choose a partner is fundamental, only the State legislature has the authority to create laws permitting the LGBTQIA+ community to marry.
The Court examined the marriage concept and its societal and legal implications. It concluded that the benefits of marriage stem from State recognition, not the inherent nature of marriage itself. Thus, State recognition through parliamentary legislation is required for LGBTQIA+ couples to receive these benefits. It is outside Courts jurisdiction.
The majority of judges also determined that civil unions between same-sex individuals are not legally recognized, and they cannot claim the right to adopt children. The Court noted the Solicitor General’s assurance that the Union Government will form a Committee, led by the Cabinet Secretary, to outline and clarify the rights of queer couples in unions.
Before finalizing its recommendations, the Committee will conduct extensive consultations with stakeholders, including marginalized groups within the queer community, and with State and Union Territory governments.
DEFECTS OF LAW
The Special Marriage Act (SMA) and other relevant laws, such as the Hindu Marriage Act and the Foreign Marriage Act, do not recognize same-sex marriages, thereby denying LGBTQIA+ individuals the protections and legal benefits afforded to heterosexual couples.
The SMA uses gender-specific terms like “husband” and “wife,” which exclude same-sex couples. The petitioners argued for a gender-neutral interpretation of these terms to include “spouse” instead.
By not recognizing same-sex marriages, LGBTQIA+ couples are denied various social and economic benefits, such as adoption rights, surrogacy, employment benefits, retirement benefits, and other legal protections available to married couples.
The exclusion of LGBTQIA+ individuals from the institution of marriage is seen as arbitrary and lacking a reasonable justification.
SUGGESTIONS AND CONCLUSION
Develop policies that provide equal rights to LGBTQIA+ individuals and hence ensuring non-discrimination in all aspects, majorly education, employment, healthcare, and housing.
Issue protective orders in cases where LGBTQIA+ individuals face immediate threats to their safety and rights due to their sexual orientation or gender identity.
The Court’s decision highlights significant gaps in the legal recognition and protection of same-sex marriages in India. The absence of legislative frameworks acknowledging the rights of LGBTQIA+ individuals leads to systemic discrimination and the denial of fundamental rights.
To address these legal shortcomings, a multi-faceted approach involving legislative, policy, judicial, and administrative measures is crucial. Legislative modifications should prioritize amending existing laws and drafting new ones to ensure gender-neutral recognition of marriages and the protection of LGBTQIA+ rights. Policy changes should focus on creating an inclusive environment, promoting public awareness, and involving the LGBTQIA+ community in decision-making processes.
Judicial actions should adopt a progressive interpretative approach to support fundamental rights, while administrative measures must include expert consultation and training for officials dealing with LGBTQIA+ issues.
By implementing these suggestions, India can move towards a more impartial legal system that recognizes and protects the rights of all individuals, regardless of their sexual orientation or gender identity. This will ensure that LGBTQIA+ individuals can fully enjoy their rights to equality, privacy, autonomy, and dignity, thereby fostering a more inclusive and just society.
Author: Ashwin R Nair, a student at Lloyd School of Law, Greater Noida