This Case Commentary is written by Yatin Kumar, a First Year Law student of Campus law centre, DU

Case details

Court supreme court

Bench: Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli, Pamidighantam Sri Narasimha

Case type civil original justice, Writ Petition (Civil) No. 1011 of 2022.

Decided on 17th October,2023.

Parties :

Supriyo @ Supriya Chakraborty & Anr. Petitioners Versus

Union of India Respondent

Abstract :

The Supreme Court of India ruled that there is no fundamental right to marry under the Constitution and that the judiciary cannot grant the right to marry without a statute ¹. The court also upheld the validity of the Special Marriage Act (SMA) and the Family Marriage Act (FMA), which only recognize marriages between heterosexual couples ¹. However, in a 3:2 split decision, the court acknowledged the "right to relationship" for queer couples but stopped short of granting them the right to marry ¹. The dissenting opinion suggested that queer couples should be allowed to form "civil unions" ¹.

The Supreme Court of India has decided not to recognize same-sex marriage but has asked the government to form a committee to look into the rights of queer unions ¹. This decision came after several petitions were filed in Indian High Courts seeking legal recognition of LGBTQIA+ couples' right to marry. The Court referred these petitions to a constitutional bench for judicial review in March 2023, which was then referred to a Five-Judge Bench due to the importance of the issue. The Court held that the right to marry is not a fundamental right and upheld the constitutional validity of the Special Marriage Act (SMA) and the Family Marriage Act (FMA) provisions. The Court also stated that recognizing queer unions would require legislative action and that any law recognizing marriage between LGBTQIA+ couples would have to be made by the State. Additionally, the Court held that refusing to expand the right to marriage for LGBTQIA+ individuals did not violate their right to privacy, autonomy, and dignity.

Key facts of the case:

"In November 2022, a group of individuals, led by Supriyo aka Supriya Chakraborty and Abhay Dang, approached the Supreme Court to fight for the right to marry for homosexual couple. They represented 21 same-sex couples who wanted to have their marriages recognized under Indian law.

They argued that not allowing them to get married was a violation of their fundamental rights as citizens of India. They believe that everyone should be treated equally and have the same rights, regardless of who they love.

The Supreme Court listened to their arguments and debated the issue extensively over ten days. They then referred the case to a constitutional bench, which delivered its verdict on October 17, 2023.

Unfortunately, the Court decided not to legalize same-sex marriage, leaving it to the government to decide i.e. legislature to decide according to societal needs. This means that same-sex couples in India still don't have the same rights as heterosexual couples, but they can still live together and have some legal recognition.

Issues raised on this case:

The major issues involved in it were:

a. Legal Rights: Are same-sex couples treated fairly under the law? Do they have the same rights as other couples when it comes to aspects like inheritance, owning property together, adoption, taxation, moving to another country, and healthcare?

b. Social Acceptance: Are LGBTQ+ people and their relationships accepted and respected by society? Especially in places where traditions or religions might not approve of same-sex relationships due to their beliefs.

c. Impact on Culture: How do same-sex relationships affect, how people see gender roles, what is considered normal when it comes to love and sex, and the values people perceive of family and marriage?

d. State Involvement: Who gets to decide if same-sex marriage must be allowed should the state make the rules, or do the individuals have the freedom to choose? And what role do the courts play in deciding if same-sex marriage should be legal?

Contention on behalf of the plaintiff :

The petitioners are arguing that non-heterosexual couples have the right to marry and that this right is inherent in Articles 14, 15, 19, and 21 ¹. They believe that marriage equality should include all sexual orientations, not just gay and lesbian binary. They also think that the Special Marriage Act, of 1954 should be amended to read "spouses" instead of "man and woman" to make it gender-neutral.

The petitioners also argue that civil unions are not an alternative to marriage and would only subordinate the queer community. They believe the government has no legitimate reason to restrict marriage to heterosexual couples only. They also think that the Adoption Regulations 2022 and the CARA Circular go beyond the Juvenile Justice Act 2015.

Lastly, the petitioners believe that the minimum age for marriage should be 18 for lesbian couples, 21 for gay couples, and the same age based on the gender they identify with for transgender couples. They also want Indo-American non-heterosexual couples' marriages to be recognized in India under the Foreign Marriage Act, 1969 if it's registered in the USA.

Contention on behalf of the respondent:

The respondents argue that the judiciary is not the right body to decide on the legalization of same-sex marriage and that it's a matter for Parliament to decide ¹. They believe that the Special Marriage Act was created for heterosexual couples, and voiding it would be a step backward ¹. They also think that the state has the right to treat heterosexual and nonheterosexual couples differently, as the laws are in place to protect the interests of children born to heterosexual couples. The respondents also mention that legalizing same-sex marriage would change the social fabric and would require changes to over 160 laws. Here are the main points of the respondents' argument:

- Judiciary's role: The judiciary is not the right body to decide on the legalization of same-sex marriage.

- Special Marriage Act: The Special Marriage Act was created for heterosexual couples, and voiding it would be a step backward.

- State's role: The state has the right to treat heterosexual and non-heterosexual couples differently, as the laws are in place to protect the interests of children born to heterosexual couples.

- Social fabric: Legalizing same-sex marriage would change the social fabric and would require changes to over 160 laws.

- Parliament's role: Parliament is the right body to decide on the legalization of same-sex marriage and grant a new socio-legal status to LGBTQIA+ individuals.

Related provisions:

Below we discuss the used legal provisions, in this case, those are,

1. Right to equality (Article 14)- this article guarantees equality before the law to every citizen and equal protection of the law. Here in the present case, the main contention is not granting equal rights to the LGBTQ+ community regarding the right to marry and equal right of adoption.

2. Freedom of speech and expression( Article 19)- This article provides qualified freedom of expression to every citizen of India, thus not allowing any citizen to have a right to marry based on their sexual orientation hampers their freedom of expression.

3. Right to life and personal liberty(article-21)- this article ensures the right to life and personal liberty to everyone unless deprived by the procedure established by law. Not recognizing the homosexual marriage of a couple infringes on their liberty.

Case Summary:

Here's a summary of the Supreme Court's verdict on same-sex marriage in India:

- The Supreme Court declined to grant legal recognition to non-heterosexual marriages under existing law.

- The court said that the right to marriage is not a fundamental right and is not guaranteed by the constitution.

- However, the court recognized the rights of non-heterosexual couples and acknowledged their right to live with dignity and privacy.

- The court held that the matter falls outside the jurisdiction of the court and that Parliament is the appropriate forum to decide on the issue.

- The court cannot strike down or read differently the provisions of the Special Marriage Act, which defines marriage as a union between a man and a woman.

- The court cannot create a new category of civil unions for same-sex couples, as it would amount to legislating from the bench.

- The court issued directions and guidelines to ensure that the queer community is not discriminated against or harassed based on their sexual orientation or gender identity.

- All five judges acknowledged that same-sex couples have the right to live with dignity and privacy and that their relationships are entitled to respect and protection.

- The judges also recognized that queer people are part of India's diversity and plurality and contribute to its culture and society.

Analysis:

Analysis of the Supreme Court's Decision on Same-Sex Marriage. The Supreme Court's decision on same-sex marriage in India has sparked a debate on the various implications of the verdict.

Legal Perspective:

The decision is legally sound, adhering to the Indian Constitution's basic tenets. However, the Court's responsibility in addressing ethical concerns has raised questions.

Moral Perspective:

The moral implications of the verdict are questionable, as it denied same-sex couples the right to marry and enjoy the benefits associated with marriage. This decision may be seen as a missed opportunity for the Court to promote equality and challenge societal norms.

Sociological Perspective:

Sociologically, the verdict reflects the prevailing social norms and values in India, which may not be ready to accept same-sex marriage. The Court's decision may be seen as a reflection of the societal attitude towards the LGBTQIA+ community. However, the verdict also highlights the need for a more inclusive and accepting society.

Separation of Power and Fundamental Rights:

The Apex Court has made efforts to confer rights to the LGBTQIA+ community within their jurisdictional arena. However, the Court cannot legislate on the issue and establish an institution parallel to marriage. It can only interpret and scrutinize laws made by the legislature.

Scope of Special Marriage Act, 1954:

The petitioners proposed either to follow the workability model or to strike down Section 4 of the SMA. However, the Court cannot transgress into the realm of the legislature, and any exercise to determine SMA as unconstitutional would be unavailing.

The Supreme Court's decision on same-sex marriage in India is a complex issue with various legal, moral, and sociological implications. While the decision may not be satisfactory for all, it is a step towards recognizing the rights of the LGBTQIA+ community and promoting equality.