This case is a collection of significant cases that the Indian Supreme Court has heard in order to decide whether or not to grant those who identify as sexual or gender minorities in India the ability to marry and start a family. A five-judge Constitution Bench, which included 52 petitioners and considered 20 related petitions, heard arguments from Chief Justice of India D.Y. Chandrachud, Justices S.K. Kaul, S.R. Bhat, Hima Kohli, and P.S. Narasimha.
FACTS OF THE CASE
Writ Requests Received:
On November 14, 2022, same-sex couples Parth Phiroze Mehrotra & Uday Raj Anand and Supriyo Chakraborty & Abhay Dang filed writ petitions.
principal emphasis Contest the Special Marriage Act of 1954’s Section 4(c), which limits marriage to a “male” and a “female.”
Plaintiffs’ Allegations:
claimed that same-sex couples are discriminated against by the restriction, which denies them access to surrogacy, adoption, and employment advantages.
On similar grounds, challenges were also made to the Foreign Marriage Act of 1969 and the Hindu Marriage Act of 1955.
Legal Foundations:
- Petitioners cited values of equality, freedom of speech, and human dignity.
- Referenced landmark rulings: NALSA v. Union of India (2014) and Navtej Singh Johar v. Union of India (2018) that granted rights to homosexuals and recognized non-binary gender identities.
Supreme Court’s Actions:
- Chief Justice D.Y. Chandrachud & Justice Hima Kohli issued an Order on November 25, 2022, directing the Union to respond to the petitions.
- Petitions from Delhi and Kerala High Courts were transferred to the Supreme Court on January 3, 2023, upon request.
- On January 6, 2023, these transferred petitions were listed with the main petition.
- A three-judge bench, including Chief Justice D.Y. Chandrachud, took over nine related petitions on January 6, 2023.
- The three-judge bench forwarded the matter to a 5-Judge Constitution Bench on March 13, 2023.
- The Constitution Bench’s proceedings are set to start on April 18, 2023. On March 13, 2023, the three-judge bench referred the case to a five-judge constitution bench. The hearings before the Constitution Bench are scheduled to begin on April 18, 2023.
ISSUES RAISED:
- Is marriage a legal right for members of the LGBTQIA+ community?
- Can the Supreme Court issue a proclamation stating that LGBTQIA+ individuals have the right to marry?
- Is it considered discrimination under Article 14 for LGBTQIA+ weddings that are excluded from the Special Marriage Act of 1954?
CONTENTIONS:
Arguments from petitioner’s side:
Based on several legal precedents and guiding principles, the petitioners made a strong case. Their argument, which focused on the problems with the notice and objection procedures in the Special Marriage Act and Foreign Marriage Act, was that marriage laws that exclude couples from sexual and gender minority communities violate fundamental rights. They argued that they had the right to go to court by citing Article 32 of the Indian Constitution, which gives the Supreme Court the authority to protect fundamental rights.
The Supreme Court’s ruling that any rule that does not safeguard an individual’s right to self-determination regarding their gender identity and sexual orientation is arbitrary and unreasonable was referenced in support of Article 14 of the Indian Constitution, which guarantees the right to equality. Additionally, the idea of substantive equality was acknowledged in decisions such as Deepika Singh v. Central Administrative Tribunal and Lt. Col. Nitisha v. UOI, which emphasised that unconventional families, including partnerships between members of sexual and gender minorities, should have equal legal protection.
The petitioners aimed to expand the right to marry, building on the Supreme Court’s creation of fundamental rights for those who identify as sexual and gender minorities in NLSA v. UOI, Puttaswamy v. UOI, and Navtej Singh Johar v. UOI.
Argument from respondent’s side:
The very nature of marriage, ingrained in our social, cultural, and legal framework, presumes a partnership between individuals of different genders. Judicial interpretation of this concept ought to be precluded, and any modifications ought to be left to capable legislatures.
Based on individual laws, marriages take many forms. It is a revered ritual among Hindus that emphasises the reciprocal responsibilities of a man and a woman. It is a contract in Islam, however it is only applicable to biological men and women. It would be improper to ask the court to change this long-standing legislative policy that is firmly ingrained in society and religion.
The Petitioners are unable to claim that the Indian Penal Code’s decriminalisation of Section 377 violates their basic right to have same-sex weddings recognised by the legal system. In the case of Navtej Singh Johar v. Union of India (2018) 10 SCC 1, the Hon’ble Supreme Court made it clear that although people have the right to union under Article 21 of the Constitution, this does not imply marriage.
In India, marriage is defined as the union of a biological man and a biological woman, as stated by both personal and codified laws such the Christian Marriage Act of 1872 and the Hindu Marriage Act of 1955. Beyond its basic acknowledgment, this institution has important social and legal ramifications.
In India, marriage is explicitly defined by law as the union of a biological man and a biological woman. Numerous legislations, personal laws, and criminal laws that employ particular terms like “husband” and “wife,” “male” and “female,” “bride” and “bridegroom,” among others, make this concept clear. This represents the explicit legislative policy of India, and the Court lacks the authority to alter this policy.
JUDGEMENT:
The five-judge bench upheld the validity of the Special Marriage Act, 1954, and held that the right to marry is not a fundamental right for queer persons.
Regarding the legal recognition of same-sex marriage, the Supreme Court rendered a landmark decision with a 3:2 majority. The three judges that made up the majority decided against making same-sex weddings legally recognised. They emphasised that Parliament has the authority to decide whether same-sex marriages should be legalised, arguing that the freedom to marry is not a basic right. Moreover, the majority justices affirmed that the crucial statute in dispute, Section 4(c) of the Special Marriage Act, does not violate the basic rights of same-sex couples.
CASE ANALYSIS:
On the one hand, it is disheartening that the majority chose not to recognise same-sex marriage legally. There are several issues with the argument presented by the majority. First, the Indian Constitution refutes the majority’s assertion that the right to marry is not a basic right. Second, it is deceptive for the majority to assert that same-sex couples have additional legal alternatives. Same-sex couples do not have the same legal rights and protections under live-in and civil partnership arrangements as they do under marriage. However, the dissenting opinion from Justices Chandrachud and Kohli presents a compelling case for same-sex marriage that is well-reasoned. Supriyo v. Union of India is a mixed bag of a ruling from the Supreme Court overall. Although it is a blow for the LGBTQ+ community in India, the opposing view offers optimism that the Supreme Court would eventually allow same-sex unions.
Still, in the middle of this disappointment, there’s a ray of light coming from Justices Chandrachud and Kohli’s separate opinion. Their oppositional position, which vehemently maintained that same-sex couples’ rights are violated by Section 4(c) of the Special Marriage Act and that the right to marry is, in fact, a fundamental right, offers hope. Their viewpoint calls attention to the potential that the Supreme Court may change its mind and go closer to allowing same-sex unions in India in the future.
Even though the majority opinion produced a depressing result, Justices Chandrachud and Kohli’s dissenting opinions serve as a reminder that the fight for equality and LGBTQ+ rights in India is still ongoing and that there may be a way for the nation to move towards a more progressive and inclusive position on same-sex marriage.
Akanksha Singh Sengar
Student at Amity law school, Lucknow