This Case Commentary is written by Divyansh Samant, a First-Year Law Student of Symbiosis Law School Noida

Date of Judgement- 17/10/2023.

Bench- CJI D.Y. Chandrachud, J. S.K. Kaul, J. Ravindra Bhatt, J. Hima Kohli & J.S. Narasimha.

Petitioner-Supriya Chakraborty & Anr.

Respondent-Union of India. Writ Petition No.-3804.

Citation-Writ Petition (Civil) No. 1011 of 2022.

Introduction.

It is a known fact that our Indian majoritarian society is still in disaccords with the scientific and evolutionary fact that there exist more than two genders and that such a phenomenon is completely normal. This difference of opinion has resulted in LGBTQIA+ individuals being deprived of the state benefits and other legal entitlements that are given to every man and woman in India but LGBTQIA+ individuals. The Supriya Chakraborty case also known as the same-sex marriage case was a momentous case in Indian legal history where the LGTQIA+ individuals approached the Supreme Court(hereinafter S.C.) of India asking the Court to change the provisions of the Special Marriage Act of 1954(hereinafter ‘SMA’) and grant their community the right to marry and adopt children as under the SMA provisions individuals of the same-sex cannot marry each other. Along with this case, 20 other cases were filed before the same bench which asked the Court to decide for protection to the communities of sexual and gender minorities such as LGBTQIA+ individuals and also ensure them their basic right to equality, personal liberty, privacy and freedom of conscience and expression in all walks of their life. The verdict though debatable touches upon the delicate fabric of laws, culture, society, religion, and human rights in the Indian context and also highlights the importance and limitations of the judiciary in bringing about social changes when they are intermingled with statutory and Constitutional provisions.

Facts of the Case.

Supriya Chakraborty and Abhay Dang were two same-sex couples who along with Parth Phiroze Mehrotra and Uday Raj Anand respectively, filed writ petitions in S.C. in 2022 questioning the validity of the SMA of 1954, Foreign Marriage Act of 1969 and Hindu Marriage Act of 1955 which only allows for a marriage between a “male” and “female” gender individual and calling for the legal recognition of same-sex marriages in India. The petitioners argued that such terminologies in the SMA are discriminatory against same-sex couples as it forbids them to marry individuals belonging to the same gender. They further contend that such a proscription would deny them the legal and social rights that stem out of the institution of marriage such as those of adoption, tax-saving, social security work, surrogacy, lease arrangements, and retirement benefits. Hence, the petitioners contended that not giving legal validation to same-sex marriages is violative of Articles 14,15,19(1)(a) and 21 of the Constitution of India. It was under its power of judicial review that S.C. had to give its judgment in light of public interest relating to lakhs of crores of LGBTQIA+ citizens.

Legal Issues:

1) Whether there exists a fundamental right to marry as argued by the petitioners and if yes then denying the queer couples this right amounts to infringement of their right to privacy and dignity. 2)Whether same-sex individuals have the right to enter into a “civil union”. 3)Questions regarding the Constitutionality of the SMA,1954 especially when it comes to the interests of same-sex couples and whether the exclusion of LGBTQIA+ marriages from SMA is violative of Article 14. 4)Do same-sex couples have the same rights as their male and female counterparts when it comes to aspects like inheritance, owning property together, adoption, taxation, and healthcare?[1] 5) Whether it should be the State through Parliament which must have the final say in allowing or disallowing same-sex marriage or the courts have the authority to do so under the Constitutional provisions.

Applicable Rules:

1)Fundamental right to marry & Unions-As such under the Indian Constitution there is no fundamental right to marry given to the citizens, however, there does exist the freedom to enter into a union which encompasses the right to choose your partner, cohabit and enjoy physical intimacy, to live the way they wish to and other rights that flow from the right to privacy, autonomy, and dignity with all these rights flowing from subsequent judgments of the S.C.in Shafin Jahan, Shakti Vahini, Navtej Singh Johar and Puttaswamy cases[2].

2)Special Marriage Act of 1954-In India registration of marriages and granting them legal sanctity can be made under different personal laws such as the Hindu Marriage Act,1955, Muslim Personal Law Application Act,1937, or under the Special Marriage Act, 1954.The SMA contains specific provisions relating to civil marriage for citizens of India and also all Indian nationals in foreign countries irrespective of their religion or faith. If any marriage is solemnized and registered under the SMA then the personal laws become inoperative and the marriage is said to be governed by the SMA. However, the SMA only talks about marriage between heterosexual couples as it says that a man should be 21 years old and a woman 18 years old (Section 4(c) of the Act). Hence, LGBTQIA+ couples cannot solemnize their marriage under the SMA.

3)Judicial review- Article 13 and Article 32 in the Constitution of India explicitly give the power to the judiciary to review existing laws made by the State and nullify all those that are in contravention of the fundamental rights of the citizens. Moreover, the 1973 case of Kesavananda Bharti opined that judicial review is part of the basic structure of the Indian Constitution.

Petitioner’s Arguments:

1) That the right to marry an individual of one’s own choice is a Fundamental Right.

2)That Articles 19 and 21 of the Constitution which guarantees citizens the right to marry persons of their choice should be extended to the LGBTQIA+ community persons also otherwise it would be violative of the aforementioned provisions.

3) since the SMA does not allow same-sex or LGBTQ individuals to solemnize and register their marriage under it, it is violative of Articles 14,15,19,21 and 25 of the Constitution. Furthermore, the SMA,1954 should be amended to include marriages between spouses instead of only a man or a woman which would indirectly mean that Section 4(c) of the Act be declared as ultra vires.A similar approach is to be used in the Foreign Marriage Act of 1969.

4)That as a result of denying LGBTQIA+ couples the right to marry, they are deprived of socially and legally advantageous laws that stem from the institution of marriage for instance only married couples are eligible for surrogacy and adoption[3].Hence equal legal and social protection be ensured for LGBTQIA+ couples.

Respondent’s Arguments:

1) The SMA is a special legislation enacted only for heterosexual individuals and allowing same-sex marriage under it would disturb the social and cultural fabric thus creating an imbalance in the society and challenging the existing family systems. Moreover, the SMA cannot be nullified as it would take India into the colonial era where people belonging to different faith and caste could not marry each other.

2) There is no Article under the fundamental rights which guarantees the right to marry or form a union.

3) ‘Procreation’ i.e. producing young ones forms the main objective of marriage and since non-heterosexuals cannot do so, there exists no ‘marriage’ in the real sense in the first place.

4)That only the parliament has the power to enact a new legislation relating to social and legal recognition of same-sex marriages and the judiciary is not the appropriate body to legislate or make any law regarding the same.

Judgment:

Firstly, S.C. unanimously held that the Constitution of India does not give Indian citizens any ‘fundamental right to marry.’ The Court further observed that although it had decided earlier that individuals do have a right to choose a partner in the present case the question is of granting a right to marry to LGBTQIA+ persons which according to it must only be left to the State has the appropriate authority to make laws approving of the same. With regards to the SMA of 1954, the Court said that it cannot strike the Act altogether or read its provisions differently as it is a matter that is to be dealt with by the legislature and policymakers instead of being interpreted or validated by the Judiciary. However, the Constitution bench delivered a split verdict with 3 judges forming the majority opinion in the final verdict and 2 judges forming the minority opinion. Justices Bhat and Kohli, with Justice Narasimha concurring, forming the majority judgement asserted that the non-heterosexual couples do not have the right to get their relationships recognized either as marriage or as a civil union[4] . They also emphasized that there is no fundamental right to marry and that the Parliament under its powers can change or introduce laws regarding same-sex marriage and unions. They further held that courts cannot create new categories such as civil unions otherwise it would seem that the judiciary is exceeding its powers under the Indian Constitution. The minority judgment was given by Justices Chandrachud and Kaul who were in favour of granting same-sex couples the right to form civil unions under their right to freedom of speech and life. It is to be noted that these judges saw marriage and civil unions differently and propounded that civil unions would give legal and social protection to individuals without interfering with the provisions of the marriage laws in India. They held that the right to enter into a union cannot be denied to any person just because of his sexual or gender orientation and would be violative of Article 15 of the Constitution. Moreover, legal validation given only to heterosexual marriages would directly be an infringement of the right to equality enjoyed by every citizen of India. With regards to the SMA, Justice Chandrachud observed that if the Court reads words into its provisions, it would intrude into legislative territory, a task beyond its institutional limits[5].Justice Kaul giving a nuanced reasoning held that given the SMA’s intent is to facilitate marriage between persons of different faiths then the exclusion of non-heterosexual couples lacks a ‘rational basis.’ All five judges conceded that the LGTQIA+ couples enjoy the “Right to live with dignity and privacy and that their relationships are entitled to respect and protection.” As an affirmative action, the bench of the S.C. issued several instructions and guidelines to the Central and State Governments and state forces to make sure that the individuals of the queer community specifically are not harassed or subjected to discrimination just based on their different sexual and gender identities.

Conclusion.

The same-sex marriage case sets a precedent as much to the recognition of LGBTQIA+ rights in India by the judiciary, however, the case of Supriya Chakraborty also exemplifies how little can be done through the institutions when dealing with social categorization that is interwoven within jurisprudences. This results in a narrow majority view culminating in the legislature legalizing same-sex marriages while a dissenting minority supports civil union recognition as well to provide for social and legal protection. While the judgment itself does not confer any right to marry, it acknowledges LGBTQIA+ persons as being entitled to dignity and privacy, it lays down directions prohibiting discrimination whilst emphasizing the ever-evolving human rights jurisprudence in India.

REFERENCES-

1) Rajeev Pratap Singh Bhutyal and Swasti Arya, ‘Legal Progression & Social Implications: Case Comment on Supriyo Chakraborty & Anr v Union of India’ (2024) Manupatra Articles https://articles.manupatra.com/Article/ArticleDetails/Legal-Progression-Social-Implications-Case-Comment-on-Supriyo-Chakraborty-Anr-v-Union-Of-India accessed 24 September 2024.

2)Prashanth S Shivadass and Sumonto Chakravarty, ‘Marriage – an LGBTQIA+ Perspective: Decoding the Supriyo Judgement on Right to Marry between Same-Sex Partners’ (2024) Bar and Bench Articles https://www.barandbench.com/law-firms/view-point/marriage-lgbtqia-perspective-decoding-supriyo-judgement-right-to-marry-samesex-couples accessed 24 September 2024. 3)Shreya Sharma, ‘Supriyo @ Supriya Chakraborty and Anr v Union of India’ (2024) The Legal Quorum Case Commentary https://thelegalquorum.com/supriyo-supriya-chakraborty-and-anr-vs-union-of-india/ accessed 24 September 2024.

4) ‘Same-Sex Marriage in India: A Review of Recent Supreme Court Judgments’ (2023) Free Law Legal Articles. https://freelaw.in/legalarticles/Same-Sex-Marriage-in-India-A-Review-of-Recent-Supreme-Court-Judgments accessed 24 September 2024.

5)Prithve R, Diviyaa Sri R, and Thendral A, ‘Case Comment: Supriya Chakraborty and Anr v Union of India’ (2024) 3(2) Journal of Legal Research and Juridical Sciences 401 accessed 25 September 2024.

[1]Rajeev Pratap Singh Bhutyal and Swasti Arya, ‘Legal Progression & Social Implications: Case Comment on Supriyo Chakraborty & Anr v Union of India’ (2024) Manupatra Articles https://articles.manupatra.com/Article/ArticleDetails/Legal-Progression-Social-Implications-Case-Comment-on-Supriyo-Chakraborty-Anr-v-Union-Of-India accessed 24 September 2024.

[2]Prashanth S Shivadass and Sumonto Chakravarty, ‘Marriage – an LGBTQIA+ Perspective: Decoding the Supriyo Judgement on Right to Marry between Same-Sex Partners’ (2024) Bar and Bench Articles https://www.barandbench.com/law-firms/view-point/marriage-lgbtqia-perspective-decoding-supriyo-judgement-right-to-marry-samesex-couples accessed 24 September 2024.

[3] Shreya Sharma, ‘Supriyo @ Supriya Chakraborty and Anr v Union of India’ (2024) The Legal Quorum Case Commentary https://thelegalquorum.com/supriyo-supriya-chakraborty-and-anr-vs-union-of-india/ accessed 24 September 2024.

[4] ‘Same-Sex Marriage in India: A Review of Recent Supreme Court Judgments’ (2023) Free Law Legal Articles. https://freelaw.in/legalarticles/Same-Sex-Marriage-in-India-A-Review-of-Recent-Supreme-Court-Judgments accessed 24 September 2024.

[5] Prithve R, Diviyaa Sri R, and Thendral A, ‘Case Comment: Supriya Chakraborty and Anr v Union of India’ (2024) 3(2) Journal of Legal Research and Juridical Sciences 401 accessed 25 September 2024.