Supriyo @ Supriya Chakraborty v Union of India 

2023 INSC 920 

Judges: D.Y. Chandrachud CJI, S.K. Kaul J, S.R. Bhat J, Hima Kohli J, P.S. Narasimha J

I] FACTS 

Since the outset of 2023, this particular case has gained prominence. The case revolves around the filing of writ petitions by two same-sex couples, Supriyo Chakraborty and Abhay Dang being the initial petitioners on November 14th, 2022, followed by Parth Phiroze Merhotra and Uday Raj Anand as the second set of petitioners. The crux of the matter lies in the challenge posed to the validity of Section 4 (c) of the Special Marriage Act, 1954. The contention is that this provision discriminates against same-sex couples, depriving them of benefits such as adoption, surrogacy, employment, and retirement benefits. 

The Supreme Court consolidated similar petitions from various High Courts and, on March 13th, 2023, a 3-Judge Bench led by Chief Justice D.Y. Chandrachud referred the case to a 5-Judge Constitution Bench. After 10 days of hearings, the 5-Judge Bench reserved judgment on May 11th, 2023. Subsequently, on October 17th, 2023, the 5-Judge Bench issued its verdict on the petitions advocating for marriage equality for LGBTQIA+ individuals. 

II] ISSUES RAISED 

1. Is there a Fundamental Right to marry? 

2. Do queer couples have the right to marry? 

3. Can unmarried and queer couples adopt?

III] CONTENTIONS 

The petitioners contended, amidst the introduction of pertinent precedents, issues, and laws, that the omission of couples from sexual and gender minority communities from marriage laws amounted to a breach of fundamental rights. They also asserted that the notice and objection provisions in secular marriage laws, specifically the Special Marriage Act and the Foreign Marriage Act, constituted a violation. Consequently, invoking Article 32 of the Indian Constitution, which ensures the Right to Constitutional Remedies and designates the Supreme Court as the guardian of Fundamental Rights, the petitioners argued that they are well within their rights to approach the Supreme Court. 

The petitioners also argued that Article 14 of the Indian Constitution ensures the right to equality. The Supreme Court has ruled that any law failing to safeguard an individual’s self-determination of sexual orientation and gender identity is deemed irrational, manifestly arbitrary, and a violation of Article 14. The principle of substantive equality was acknowledged by the Supreme Court in Lt. Col. Nitisha v. UOI (2021). In Deepika Singh v. Central Administrative Tribunal (2022), the Supreme Court held that unconventional family structures, such as domestic, unmarried partnerships or relationships involving sexual and gender minority individuals, merit equal protection under the law as guaranteed by Article 14. On 12 March 2023, the Union Government under the leadership of the Bharatiya Janata Party filed a counter-affidavit in the Supreme Court, opposing extending the right to marry to sexual and gender minority individuals in India. The Union Government argued that the challenge to notice and objection provisions of the Special Marriage Act and Foreign Marriage Act and adoption regulations unrelated to same-sex marriage. Therefore, the Supreme Court should exclude those matters from the current Case. The Union Government contended 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 Chandrachun 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, consisting of defined entitlements and obligations” which would be required in this case. 

IV] RATIONALE 

The court reached a unanimous decision on the matter, asserting that the Right to marry does not fall within the purview of Fundamental Rights. Chief Justice Chandrachud emphasized that “the Constitution does not expressly recognize a fundamental right to marry.” He pointed out that laws governing the institution of marriage are formulated by the Parliament, and state legislatures have the authority to make amendments to such laws. He underscored that state legislatures lacking specific laws on marriage would be obliged to establish them due to the inherent requirement in the right to marry. Justice S.R. Bhat concurred with the Chief Justice, and Justice Narasimha added that marriage is a fundamental freedom rather than a right. The Supreme Court’s 5-Judge Bench delivered a divided verdict on the right of queer couples to marry. The ruling, with a 3:2 ratio, rejected the existence of a right for queer couples to marry. Justices DY Chandrachun and S.K. Kaul sided in favor of the queer couples, while Justice Bhat, Justice Narasimha, and Justice Hima Kohli formed the majority opinion.

Justice Bhat, leading the majority opinion, asserted that all queer individuals have the right to form relationships, choose their partners, cohabit, and live together, considering these aspects as integral parts of personal choice, already recognized under Article 21. However, he highlighted that establishing a “social institution” like marriage would necessitate an entirely different legal framework, introducing a “new universe of rights and obligations.” Justice Bhat pointed out that this would entail a separate system for the registration of civil unions, specifying conditions for a valid union, determining eligibility, age criteria, restrictions, divorce procedures, alimony, and various other rights associated with marriage. Importantly, Justice Bhat emphasized that the state is not obligated to recognize this comprehensive set of entitlements. 

The petitioners contested Regulation 5(3) of the 2020 Central Adoption Resource Authority Guidelines, which limits adoption to single individuals and married couples in a stable marital relationship for at least two years. Additionally, they challenged Section 57(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, which mandated the consent of both spouses for adoption. In a split verdict (3:2), the 5-judge bench concluded that queer couples are not entitled to adopt a child.

Justice Bhat, leading the majority opinion, highlighted that Section 57(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 explicitly requires marriage as a prerequisite for adoption. He pointed out that this framework ensures that if one parent abandons the relationship, the other can still provide for themselves and the child—a remedy unavailable to a couple with no legal recognition. Justice Bhat clarified that being a married couple does not imply a “morally superior choice,” but the adoption framework considers the “protections and entitlements” stemming from the institution of marriage. 

He emphasized that the “guiding principle” of the JJ Act is the best interest of the child, not to facilitate adoption for everyone. While acknowledging the rights of queer couples, Justice Bhat noted that the state arguably has a more urgent need to enable a comprehensive range of rights for queer parents and children. The state’s responsibility is 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.” 

V] DEFECTS OF LAW 

The discussions regarding the marriage rights of sexual and gender minority individuals sparked a public debate on the matter, consequently raising awareness about the experiences of these individuals in India. The media played a crucial role by offering a platform for sexual and gender 

minority individuals to share their stories and perspectives, contributing to a broader understanding of their lives. A cluster of retired judges emphasized the foundational nature of the separation of powers in the Constitution, contending that the authority to make laws is exclusively vested in the legislature. Conversely, some argued that interpreting statutes does not constitute a judicial overreach but rather falls within the judiciary’s purview. It was highlighted that judicial review plays a vital role in safeguarding the fundamental rights of Indian citizens, particularly when the legislature hesitates to take action. Despite encountering political resistance, the Court’s dedication to upholding these rights has remained a fundamental pillar of Indian democracy. 

VI] INFERENCE 

The court, in complete agreement, approved the government’s proposal to establish a high-powered committee led by the Cabinet Secretary. The committee’s mandate is to examine the discrimination experienced by the LGBT community and explore the feasibility of granting specific legal rights and benefits to same-sex couples. This includes considerations such as access to joint bank accounts, acknowledgment as next-of-kin, making medical decisions for a hospitalized partner, facilitating prison visitations, and addressing succession rights. 

Chief Justice Chandrachud wrote that the court could not declare the SMA unconstitutional because this would bar interfaith and inter-caste marriages, and argued that reading same-sex couples into the Act would violate the separation of powers: 

This court cannot either strike down the constitutional validity of the Special Marriage Act or read words into the Special Marriage Act because of its institutional limitations. The court, in the exercise of the power of judicial review, must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain. […] The judiciary cannot legislate.” 

CJI Chandrachud recommended that the committee should consider the following aspects: 

1. Queer partners should be considered as a part of the partners family for the purpose of ration cards

2. Queer partners should be permitted to open a joint bank account with the option to add the name of the partner as a nominee

3. Queers partners should be considered “family” when a medical practitioner is consulting the “family” of a terminally ill patient under the Euthanasia guidelines. 4. Permit jail visitation rights to queer partners

5. Permit access to the deceased body of the queer partner to arrange their last rites. 6. Permit succession rights, maintenance, financial benefits, family pension, and insurance for the queer partners.

The five-judge Bench unanimously agreed that there is no fundamental right to marry, and marriages between queer persons cannot be read into the Special Marriage Act, 1954. All five judges agreed that transgender persons in heterosexual relationships have the right to marry under the existing legal framework. 

 Tejaswi Lal 

Symbiosis Law School, Nagpur