This Case Commentary is written by Harapriya sahoo, a Second-Year Law Student of SOA National Institute Of Law, Odisha

Case Title: Supriyo @ Supriya Chakraborty & Anr. v. Union of India

Court: Supreme Court of India

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

Judges: CJI D.Y. Chandrachud, S.K. Kaul (J), S.R. Bhat (J), Hima Koli (J) and P.S. Narasimha (J)

Date of Judgment: 17th October, 2023

Abstract

Supriyo v. Union of India is one of India's most significant court cases addressing LGBTQ+ rights. The case demonstrates opposition to the government's attempt to legalize same-sex unions under the 1954 Special Marriage Act. This case will have a significant impact on how the Indian Constitution's Articles 14, 19, and 21 are interpreted, including equality, dignity, and personal liberty. Although the Indian judiciary has made major contributions to the progress of LGBTQ+ rights, this case raises fundamental issues about the courts' ability to compel social and legislative changes while striking a balance between constitutional safeguards and societal norms.

Introduction

The issue of same-sex marriage has caused debate in India, especially in the wake of the landmark decision made by the Supreme Court in Navtej Singh Johar v. Union of India (2018), which decriminalized consensual homosexual activity. In Supriyo v. Union of India, the petitioners said that discrimination based on sexual orientation is committed when same-sex marriages are not recognized, violating their fundamental rights. The case touched on issues of constitutional interpretation, the role of the judiciary, and acceptance in Indian culture.

This case is regarded as a critical turning point in the fight for LGBTQ+ rights because it directly challenges the exclusion of same-sex couples from the institution of marriage, which has significant social, legal, and economic repercussions. Despite petitioners' calls for an inclusive interpretation of the Special Marriage Act, the government opposes same-sex marriage recognition, claiming that marriage is a traditional institution created for heterosexual marriages. The ultimate verdict in this case by the Supreme Court may have enormous repercussions for both the LGBTQ+ community and how India's constitution is interpreted moving ahead.

The facts of the case

The Supreme Court received a writ petition on November 14, 2022, from Supriyo Chakraborty and Abhay Dang, as well as from Parth Phiroze Merhotra and Uday Raj Anand, two same-sex couples. This is the most important legal action taken by this gender minority community to recognize same-sex marriage in India. The Special Marriage Act of 1954 is the subject of their petitions, which primarily address its constitutionality. Section 4(c) of the Act restricts marriage to "Male" and "Female." The petitioners claim that Section 4(c) of the Special Marriage Act of 1954 discriminates against same-sex couples by denying them access to employment, surrogacy, retirement benefits, adoption, and other family-based protections. This renders the clause unlawful. They have also brought numerous other cases against other personal laws, such as the Hindu Marriage Act of 1955 and the Foreign Marriage Act of 1969, on the same grounds. They persuasively argue that being against same-sex marriage is an infringement on equality, free speech, and human dignity, among other fundamental rights.

They also referenced rulings in two other seminal instances, Navtej Singh Johar v. Union of India and NALSA v. Union of India, which gave gay people equal rights and acknowledged non-binary or transgender gender identity. On November 25, 2022, the Supreme Court—led by Chief Justice D.Y. Chandrachud and Justice Hima Kohli—made history by ordering the union to reply to the petitioners. This judgment allowed for future legal disclosure regarding India's acceptance of same-sex weddings. Following ten days of proceedings, on March 11, 2023, the five-judge bench delayed their ruling. On October 17, 2023, a five-judge panel is expected to rule on the petitions seeking marital equality for the LGBTQIA+ community. This decision is anticipated to change the law as it is and have a big effect on same-sex people's freedom and rights in India.

Issues Raised

1. Does the Fundamental Right to marry exist?

2. I1. Is marriage legal for people who identify as LGBTQIA+?

3. Can the Supreme Court rule on whether members of the LGBTQIA+ community have the right to marry?

4. Is the Special Marriage Act, 1954 unconstitutional?

Contention of Appellant

The petitioners want the Supreme Court to support their rights to marry the person of their choosing, which is guaranteed by Articles 14, 15, 19, 21, and 25 of the Indian Constitution. Couples and other members of the LGBT and gender minority groups are among the petitioners. Notably, they expressed apprehension regarding important facets of the Foreign Marriage Act and the Special Marriage Act, contending that their exclusion from marriage legislation violates the fundamental rights of populations comprising sexual gender minorities. They claimed that Article 32 of the Indian constitution, which grants the Supreme Court the authority to protect an individual's fundamental rights, gave them the right to file a lawsuit for the infringement of their rights.

Taking into consideration the Supreme Court's establishment of fundamental rights for people who identify as sexual minorities in cases like NALSA v. UOI, Puttaswammy v. UOI, and Navtej Singh Johar v. UOI, the petitioners sought to extend the right to marriage and family establishment for the communities of sexual gender minorities based on various articles of the constitution. The Delhi Commission for Protection of Child Rights, a statutory body of the Aam Aadmi Party-led Delhi government, intervened to approve allowing individuals who identify as sexual or gender minorities to marry, form families, and adopt children.

Contention of Respondent

The Union Government, as represented by the Bhartiya Janata Party and its official body, the National Commission to Protect the Rights of Children, was the respondent in this case. They were against the extension of the right to marriage and the formation of families for individuals who identify as members of sexual or gender minorities due to India's social, cultural, and religious heritage as well as popular values and majority beliefs. The right is opposed by many nonprofits, women's empowerment groups, Islamic organizations, and Hindu organizations. Only legislative authorities have the authority to modify the definition of marriage; judges shouldn't be able to interpret it. Our legal and social structures are firmly based on the idea of marriage, which assumes the joining of two individuals of different sexes.

Marriage's legal status varies depending on the culture. For example, marriage is a sacrament in Hinduism and involves mutual duties between men and women. In Islam, marriage is a contract, but it is only permitted between biological males and females. Therefore, asking a court to change a long-standing legal policy that is ingrained in social and religious norms would not be acceptable. The Hon'ble Supreme Court made it clear in the Navtej Singh Johar v. UOI (2018) 10 SSC 1 case that a person's right under Article 21 of the Constitution does not always entail marriage.[1].

It would also be against all codified and customary regulations, such as those concerning marital requirements, customs or ceremonies, relationship bans, and more, to register a marriage between a same-sex couple. Issues about marriage, divorce, and maintenance are only the legislature's responsibility. A marriage is defined by the Indian legislature as the joining of a biological man and a biological woman. Statutes, all personal laws, and penal laws make this obvious. It also makes it obvious that the power to alter policy rests with the legislature rather than the courts.

Judgment

Chief Justice D.Y. Chandrachud wrote that the court could not declare the Special Marriage Act, unconstitutional because it would bar inter-caste and religion marriages, and adding same-sex couples in the act would violet the separation of powers between the judicial and legislative and the parliament only have the power to legalize same-sex marriage. Justice S.K. Kaul agreed with Chandrachud that same-sex relationships had been recognized in India from the ancient period, and this is not in terms of sexual activities but as relationships based on love, emotional support, and mutual care. But still ruled that the court can’t grant LGBTQA+ people to marry as that is the exercise of legislation. The majority opinion of the court held that the trans-people may marry “A transgender man can marry a transgender woman and also if a trans person wants to marry a heterosexual man, then their marriage will be recognized as if one man and another a woman”[2].

Defects of Law

There were no legal flaws because the Supreme Court made it abundantly evident that only the parliament had the authority to add to and modify both codified and personal laws. The separation of powers will be violated if the court gets involved in this. "The court cannot legislate the domains that fall under the parliament (legislative system) or strike down the constitutional validity of the Special Marriage Act because of its institutional limitations," Justice Chandrachud declared emphatically.

Inference

The ruling of Supreme Court in Supriyo v. UOI case[3] Constitute a major setback for the LGBTQA+ community. The majority’s decision to refuse to legalize same-sex marriage in India is disappointing. The major party gave several non-sensible reasons like claiming right to marriage is not a fundamental right and is not supported by the constitution of India, also claimed that same-sex couples have other legal options but live-in relationships and civil partnerships don’t have the same legal rights and security to the couples which is given in marriage. However, Justice Chandrachud and Kohli gave strong well-reasoned arguments which are in favor of same-sex marriage by supporting the right to marry as a fundamental right and section4(c) of the Special Marriage Act is a violation of the rights of same-sex couples and they have the same right to marry as the heterosexual couples. Overall, the decision by the Supreme court on this case is somehow not clear and mixed. However, the dissenting opinion given by Justice Chandrachud and Kohli makes the possibility that the supreme court will reconsider to legalize of same-sex marriage shortly high.

References

[1] Ratna Singh, SUPRIYO CHAKRABORTY V. UNION OF INDIA, November 11, 2023, https://legalvidhiya.com/supriyo-chakraborty-v-union-of-india/ last visited on 2nd October 2024.

[2] Supriyo @ Supriya Chakraborty vs Union of India, Supriyo @ Supriya Chakraborty vs Union of India on 17 October, 2023 (indiankanoon.org) last visited on 23 March, 2024

[3]Same Sex Marriages,StudyBoss, (March 2019) https://studyboss.com/essays/same-sex-marriages.html , last visited on 2nd October 2024.