BENCH : CJI D.Y. Chandrachud , J. S.K. Kaul , J. Ravindra Bhat , J. HIMA KHOLI & J. P.S. Narasimha .
CITATION : W.P.(C) No. 1011 /2022 Diary No. 36593/2022 .
PETITIONERS : SUPRIYO CHAKRABORTY, ABHAY DANG, PARTH PHIROZE MEHROTRA, UDAY RAJ ANAND.
RESPONDENT : UNION OF INDIA .
FACTS OF THE CASE
This case has been in highlight since the beginning of 2023, the facts of the case involved a writ petitions being filed by the two same-sex couples at the Supreme Court on November 14th, 2022. Supriyo Chakraborty and Abhay Dang were the first petitioners for the case. Parth Phiroze Mehrotra and Uday Raj Anand filed the second petition. The petitioners challenged the validity of Section 4 (c) of the Special Marriage Act, 1954 on that ground that the provision discriminates against same sex couple by denying them benefits such as adoption, surrogacy, employment and retirement benefits. The Supreme Court transferred similar petitions to itself which were pending before High Courts. These other Petitions challenged the enactments including the Hindu Marriage Act, 1955 and the Foreign Marriage Act, 1969. On March 13th, 2023, a 3-Judge Bench led by CJI D.Y. Chandrachud referred the case to a 5-Judge Constitution Bench. On May 11th, 2023, the 5-Judge Bench reserved judgment after 10 days of hearings. On October 17th, 2023, the 5-Judge Bench pronounced its verdict on petitions seeking marriage equality for LGBTQIA+ persons.
- Whether Supreme Court is vested with authority to hear this case?
The Union Government contented that the Supreme Court deciding upon the question of same sex couple’s right to marry would amount to violation of Doctrine of Separation of Power and would lead to the Apex Court encroaching upon the legislative domain. The CJI DY Chandrachud while opining upon this issue noted upon the importance of Judicial Review and observed that the Supreme Court is well within its power to decide upon this question. Justice Bhat disagreed with the CJI and held that “court may feel the wisdom of a measure or norm that is lacking”, it must be careful to not venture into the powers and functions that are constitutionally awarded to other “departments and organs to discharge”. Though the impact of the lack of legal entitlements to queer persons is discriminatory, the Court cannot “fashion a parallel legal regime, comprising of defined entitlements and obligations” which would be required in this case.
- Is there a Fundamental Right to marry?
The court gave unanimous decision upon this issue that the Right to marry does not fall under the ambit of Fundamental Right. CJI Chandrachud held that “the Constitution does not expressly recognize a fundamental right to marry”. He pointed out that the laws relating to the institution of marriage are enacted by the Parliament. State legislatures are permitted to make amendments to such laws. He highlighted that some state legislatures who “have not created an institution of marriage in exercise of their powers…would be obligated to create an institution because of the positive postulate encompassed in the right to marry.” Justice S.R. Bhat agreed with the CJI and Justice Narasimha added that marriage is a fundamental freedom, not a right.
- Do queer couples have right to marry?
The 5 Judge Bench of the Supreme Court gave a split verdict on this question. The verdict delivered by 3:2 ratio denied that there exists a right for queer couples to get married. Justice DY Chandrachud and Justice S.K. Kaul ruled in favour of the queer couples. Justice Bhat, Justice Narasimha and Justice Hima Kohli gave the majority opinion. Justice Bhat leading the majority opinion held that all queer persons have the right to relationship and choice of partner, cohabit and live together, as an integral part of choice.” This is already recognised under Article 21. “Ordering a social institution” would require a completely different legal framework with “new universe of rights and obligations.” Justice Bhat noted that this would require a separate regime for registration of the civil union, laying down the conditions of a valid union, setting eligibility, age, restrictions, divorce, alimony and a bouquet of other rights that are ancillary to marriage. The state is not obliged to recognize this “bouquet of entitlements”.
- Can transgender persons in heterosexual relationships marry under existing laws?
CJI Chandrachud held that a transgender person in a heterosexual relationship is entitled to marry after a “harmonious interpretation” of existing marriage laws and the Transgender Persons Act. He reasoned that marriage laws in India permit marriages arising out of heterosexual relationships. The existing laws such as the SMA or other personal laws describe a marital relationship between a “man” and a “woman”, “husband” and a “wife”, and “bride and a bridegroom”. If such is restricted, it would violate the Transgender Persons Act which prohibits discrimination of transgender persons. Further, he stated that a person is a transgender person by “virtue of their gender identity”, and it is not their “sexual orientation”.
- Can unmarried and queer couples adopt?
The Petitioners had also challenged Petitioners had challenged Regulation 5(3) of the 2020 Central Adoption Resource Authority Guidelines which restricts adoption to single individuals and married couples who are in a stable marital relationship for two years. Section 57(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 mandated that both spouses had to consent for adoption. The 5 Judge bench gave a split verdict (3:2) on this question and held that queer couples are not entitled to adopt a child. Justice Bhat leading the majority opinion held that Section 57(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 clearly states marriage as a prerequisite to adopt a child. He also observed that “This framework ensures that if one parent abandons the relationship, the other can maintain themselves and the child – a remedy that a couple with no legal recognition is deprived of. Justice Bhat clarified that though a married couple is not a “morally superior choice”. However, the adoption framework takes into account the “protections and entitlements, [which] flow from the institution of marriage.” The “guiding principle” of the JJ Act is the best interest of the child, “not to enable adoption for all”. Justice Bhat also noted upon the rights of queer couple and noted that “State arguably has an even more urgent need to enable the full gamut of rights” to queer parents and children. The state needs to “ensure that the maximum welfare and benefits reach the largest number of children in need of safe and secure homes with a promise for their fullest development,”.
- Is the Special Marriage Act, 1954 unconstitutional?
Deciding upon this question CJI Chandrachud held that declaring the SMA as “void” would “take India back to the pre-independence era” where inter-caste and inter-faith relationships were impermissible. “Such a judicial verdict would not only have the effect of taking the nation back to the era when it was clothed in social inequality and religious intolerance but would also push the courts to choose between eradicating one form of discrimination and prejudice at the cost of permitting another.” Justice Bhat noted that the “sole intention” of the SMA was to “facilitate marriage between persons professing different faiths”. At the time that the law was made, consensual sexual relations between persons of the same sex remained prohibited, and moreover, not the focus of the law. He held that “as long as an objective [of a law] is clearly discernible, it cannot be attacked merely because it does not make a better classification.”
CONTENTIONS OF APPEALENT
- The petitioners presented a compelling argument based on a series of legal principles and precedents. They contended that the exclusion of couples from sexual and gender minority communities from marriage laws violated fundamental rights, particularly highlighting the issues with notice and objection provisions in the Special Marriage Act and Foreign Marriage Act. By invoking Article 32 of the Indian Constitution, which empowers the Supreme Court to safeguard fundamental rights, they asserted their right to approach the court.
- Under Article 14 of the Indian Constitution, which ensures the right to equality, the Supreme Court’s pronouncement that any law failing to protect an individual’s self-determination of sexual orientation and gender identity is irrational and arbitrary was cited. Furthermore, the concept of substantive equality was recognized in cases like Lt. Col. Nitisha v. UOI and Deepika Singh v. Central Administrative Tribunal, emphasizing equal protection under the law for atypical families, including relationships between sexual and gender minority individuals.
- Building upon the Supreme Court’s establishment of fundamental rights for sexual and gender minority individuals in NLSA v. UOI, Puttaswamy v. UOI, and Navtej Singh Johar v. UOI, the petitioners sought to extend the right to marry and establish a family to these communities based on multiple constitutional articles.
- The argument also drew strength from High Court decisions, such as the Madras High Court’s ruling in Arun Kumar v. Inspector General of Registration, which declared that the refusal to register the marriage between a Hindu cisgender man and a Hindu transgender woman violated fundamental rights as guaranteed under various articles of the Indian Constitution.
CONTENTIONS OF REPONDENT
- The concept of marriage inherently assumes a union between individuals of opposite genders, deeply entrenched in our social, cultural, and legal fabric. This definition should remain untouched by judicial interpretation, with any potential alterations reserved for competent legislative bodies.
- The nature of marriage varies based on personal laws. Among Hindus, it’s a sacred sacrament, emphasizing mutual duties between a man and a woman. In Islam, it’s a contract, yet still restricted to a biological man and woman. Requesting the court to alter this long-standing legislative policy, deeply rooted in religious and societal norms, would be impermissible.
- Despite the decriminalization of Section 377 of the Indian Penal Code, the Petitioners cannot assert a fundamental right to have same-sex marriages recognized under the country’s laws. This has been explicitly clarified by the Hon’ble Supreme Court in the case of Navtej Singh Johar v. Union of India (2018) 10 SCC 1, where it stated that while individuals have a right to union under Article 21 of the Constitution, it doesn’t necessarily mean marriage.
- Marriage in India, as recognized by personal and codified laws such as the Hindu Marriage Act, 1955, Christian Marriage Act, 1872, and others, is a union between a biological man and a biological woman. This institution carries significant social and legal implications, extending beyond mere recognition. Family matters, which encompass rights and responsibilities, are distinct from the legal recognition of same-sex marriage.
- Registering marriages between same-sex individuals would also violate existing personal and codified laws, including regulations concerning prohibited relationships, conditions of marriage, ceremonial and ritual requirements, and more. The legislative framework surrounding marriage, divorce, alimony, and related matters is exclusively within the jurisdiction of the Legislature.
- The legislative understanding of marriage in India is explicit – it is a union between a biological man and a biological woman. This definition is evident in various statutes, personal laws, and penal laws, which use specific terms like “husband” and “wife,” “male” and “female,” “bride” and “bridegroom,” among others. This reflects the clear legislative policy in India, and it’s not within the Court’s purview to change this policy.
In a 3:2 majority, the Supreme Court reached a significant verdict regarding the legal recognition of same-sex marriage. The majority, comprising three judges, declined to grant legal recognition to same-sex marriages. They asserted that the right to marry is not inherently a fundamental right, emphasizing that it falls under the purview of Parliament to make determinations regarding the legalization of same-sex marriage .Furthermore, the majority judges maintained that Section 4(c) of the Special Marriage Act, a key piece of legislation in question, does not infringe upon the fundamental rights of same-sex couples. Their rationale Centered around the belief that same-sex couples possess alternative legal avenues, such as live-in relationships and civil partnerships, which adequately address their needs.
In contrast, the dissenting judges, Justices D.Y. Chandrachud and Hima Kohli, held a contrary viewpoint. They firmly asserted that the right to marry should indeed be regarded as a fundamental right. Furthermore, they argued that Section 4(c) of the Special Marriage Act does indeed violate the fundamental rights of same-sex couples. In the dissenting judges’ perspective, the right to marry is an integral aspect of an individual’s right to life and personal liberty. They contended that same-sex couples should enjoy the same marriage rights as their heterosexual Counter Part . This divided ruling underscores the complex and contentious nature of the debate surrounding same-sex marriage in the legal landscape. The majority’s decision entrusts the matter to legislative action, while the dissenting judges advocate for the immediate recognition of the fundamental right to marry for all couples, irrespective of gender or sexual orientation.
At the outset, it is evident that the institution of marriage in India has evolved significantly from its historical roots. Practices that were once entrenched such as child marriage, sati and denial of widow remarriage have been unequivocally condemned and outlawed. This establishes that marriage is a dynamic institution that must keep pace with the changing social ethos of inclusiveness, equality and dignity for all. It is also clear from the various perspectives shared in this case that there exists no universal definition of marriage. Different communities, religions and personal laws in India perceive marriage in diverse ways. As long as certain basic prerequisites are fulfilled under applicable statutes, a marriage is valid regardless of the presence or absence of other characteristics. This allows couples the flexibility to define the contours of their relationship while still availing of the legal benefits of a union A crucial takeaway is that the Constitution does not mandate a uniform concept of marriage or restrict the legislature’s role in regulating relationships. However, any restrictions imposed by the State must have a legitimate basis and not violate the fundamental rights of citizens. Specifically, the rights to life, liberty, equality, freedom of expression and dignity enshrined under Articles 14, 19 and 21 cannot be abridged due to one’s sexual orientation or gender identity. The deliberations have clarified that same-sex relationships and transgender identities are natural phenomena that have historically existed in India. They cannot be dismissed as so-called ‘Western Imports’. When individuals from diverse social, economic and educational backgrounds provide accounts of their queerness in different parts of the country, it shows that this is not an urban phenomenon either. The denial of legal recognition to same-sex and transgender unions amounts to unconstitutional discrimination. It is evident that substantive directives are necessary from the Court to address violations of fundamental rights, rather than just striking down laws. Positive obligations must be cast upon the State to emancipate the LGBTQIA+ community from the shackles of deep-rooted social oppression. Comprehensive legal reform is required to ensure equality, dignity and non-discrimination in accessing all benefits associated with marriage. However, the nuanced policy considerations involved in restructuring statutory frameworks are best addressed through consultative processes in the legislature and executive. In conclusion, a balanced approach is imperative. While protecting basic rights and rectifying clear violations, due regard must be given to the legitimate roles of the other organs of the State. The judiciary cannot assume the function of enacting comprehensive legal reforms but has to enable participatory and inclusive democratic governance in line with constitutional values of justice, liberty, equality and fraternity.
INDORE INSTITUTE OF LAW
 Supriya Chakraborty & Another v. Union of India, (26 November 2023, 09:34:56), https://www.dhyeyalaw.in/supriya-chakraborty-anr-v-union-of-india#
 Supriya Chakraborty & An. v. Union of India,Dhyeya Laws,(26 November 2023, 09:45:34 ), https://www.dhyeyalaw.in/supriya-chakraborty-anr-v-union-of-india#