This Case Commentary is written by Aqsa Mirza, a Third-Year Law Student of Dr Panjabrao Deshmukh College of Law, Amravati

Case Details:

• Court: Supreme Court of India

• Equivalent Citation: 2023 INSC 920

• Decided on: 17 October 2023

• Bench:

  • Chief Justice of India (CJI) D. Y. Chandrachud

  • Justice S. K. Kaul

  • Justice Ravindra Bhatt

  • Justice Hima Kohli

  • Justice P. S. Narasimha

• Case Type: Civil Writ Petition

• Parties Involved:

  • Petitioner: Supriyo a.k.a Supriya Chakraborty & Abhay Dang

  • Respondent: Union of India through its Secretary, Ministry of Law and Justice

Introduction

The judgment of the Supreme Court of India in Supriyo v. Union of India[1], signals a landmark shift in the battle for the rights of the LGBTQIA+ community, especially in the context of marriage equality. The case brings in the potpourri of personal rights, social mores, and the constitutional imperative of equality. The judgment of the Supreme Court assumes significant importance although it has not declared any explicit right to same-sex marriages. This note aims to deconstruct the judgment, assess the legal principles emanating from it, and understand its social and legal fallout.

Background of the Case

The petitioners before the Supriyo v. Union of India sought a declaration that the petitioners had a right to get married and be legally recognized since the denial of this right infringed their Articles 14[2], 15[3], 19[4], and 21[5] Rights under the Constitution of India. They argued that the denial of marriage to LGBTQIA+ individuals is a denial of equality, dignity, and personal autonomy. Petitioners relied on precedents such as the Navtej Singh Johar v. Union of India.[6] Case, wherein the court decriminalized consensual sexual relations among adults of the male gender and recognized sexual orientation as an intrinsic part of individual identity.
The Union of India contended that marriage was a social institution governed by existing statutes that had been framed for strictly heterosexual unions. It claimed that any redefinition of the term 'marriage' falls within the legislative domain and not within the judicial jurisprudence.[7] The key issues before the Court were the nature of marriage, the scope of judicial review, and constitutional morality vying against social norms.

Core Legal Questions

1. Does the right to marry under Article 21 include same-sex marriages?

2. Is it for the judiciary or the legislature to reconsider and reframe marriage?

3. Does the Articles 14 and 15 claims by the LGBTQIA+ to marry run into Articles 14 and 15, especially on grounds of discrimination based on sex and sexual orientation?

4. Can the SMA, 1954 be interpreted in a gender-neutral manner, allowing same-sex marriages?

Judgment Summary

The Court recognized individual choice in matters of matrimony and acknowledged that the right to marry is an integral part of the larger right guaranteed by Article 21 of the Constitution to life and liberty[8]. It, however, refused to vest the kind of explicit right to same-sex marriage. It emphasized the fact that marriage as an institution is very much embedded in the social mores and traditions, and any change therein can be achieved only through legislation and not through judicial fiat.[9]

Justice S.K. Kaul concurred with the majority view and added the necessary element that a change in perception and acceptance towards same-sex unions would have required wider public debate. Yet the Court acknowledged the sanctity of marriage and pronounced that it was still in an immature legislative stage to allow same-sex marriages to come within its fold.[10]

Argument Based on Law

1. Equality and Non-Discrimination Rights

The petitioners claimed that the denial of the right to marry same-sex couples amounts to discrimination based on sexual orientation, which is essentially protected by Article 15's ban on discrimination on the grounds of sex.[11] The petitioners, relying on Navtej Singh Johar, were of the view that sexual orientation forms an intrinsic part of the self and any differential treatment based on it is impermissible.[12]

The Court, conceding this argument, had then pointed to the complications in changing the statutory definition of marriage. Article 14[13] Guaranteed equality before the law, so classifications that created a stratum that excluded certain people from marriage rights came under judicial scrutiny. The SMA scheme, as it existed was for heterosexual unions, and it could hardly be hastily "opened" to include same-sex partners without legislative amendments.[14]

2. Constitutional Morality vs. Social Morality

In Supriyo, the judgment attempts to balance constitutional morality and the mores of society. In Navtej Singh Johar, the practice of constitutional morality demands the protection of individual freedom, however much the weight of society is thrown against it. However, in Supriyo, the Court drew attention to the fact that institutions like marriage have been socially digested and form part of cultural contexts and, therefore, deserve greater care. Chief Justice Chandrachud famously said that the Constitution, being a living document, requires societal sanction for new norms for social rights to be properly enforced.[15] Such a position shows the judicial realization that what is socially acceptable can change with time and is reluctant to enforce something that does not have the collective sanctioning of society.

3. Judicial Activism v. Legislative Jurisdiction

A landmark aspect of the judgment is that the Court puts much emphasis on the principle of separation of powers. It held that because it has the power to interpret and uphold constitutional rights, it cannot alter the statutory definition of marriage.[16] It was Justice S.K. Kaul who made the pertinent remark that there exists a whole gamut of rights, duties, and obligations and more appropriately deserves parliamentary debate and consensus.[17] This solicitude for legislative discretion reflects the Court's recognition of its inability to address such deeply-rooted social institutions through judicial intervention alone.

4. Reading the SMA in a Gender-Neutral Sense

The prayer of the petitioners also included reading the SMA in a gender-neutral sense, referring to gender-specific terms such as "husband" and "wife" as "spouse."[18] The Court accepted the possibility of re-construction of statutes for constitutionally cognizable values but shrank away from the practical possibility of its feasibility without legislative amendment. In turn, Chandrachud observed that gender-neutral SMA may lead to absurdities and contradictions in law about other statutory rights and obligations bestowed with the rights of adoption, inheritance, and spousal maintenance among others.[19]

5. Implications for the LGBTQIA+ Community

While the Court did not quite grant the right to same-sex marriage, it recognized the dignity and self-worth of members of the LGBTQIA+ community. The Court of Law declared that the members of this community had a right to union formation and a right to be free from the peril of societal discrimination.[20] However, the issue of marriage equality falls within the ambit of legislature enactment, and this practically serves to defer a resolution for the problem at hand. Advocacy and legislative engagement are still in order, therefore.

Critical Analysis

This judgment in Supriyo reflects the Supreme Court's cautious approach to navigating the complex interplay between the rights of the individual and societal norms. The Court has demonstrated this by recognizing the constitutional rights of LGBTQIA+ individuals but deferring same-sex marriage to the legislature - a distinction made between upholding constitutional morality and respecting the democratic process.

1. Balancing Judicial Activism and Restraint

In Supriyo, in contrast, the overall thrust of the Court is on judicial restraint; in Navtej Singh Johar, it was progressive itself in extending Article 21 as containing the right to sexual autonomy.[21] Here, in Supriyo, in the backdrop of such diverse cultural and religious entities and largely in a society wherein judges balk at taking over liberties with impatient citizens ready to set a societal storm against change through the courts, the Court appears to have refused to assume a further role in this matter. This restriction, though in line with the doctrine of separation of powers, has been strongly criticized for not providing immediate relief to the LGBTQIA+ community, thereby letting the practice of discrimination prevail under the veil of legislative deference.

2. Constitutional Morality as an Incomplete Safeguard

The Court has placed reliance on constitutional morality while passing its judgment; however, it did not take it a step further and endow the legislature with that very morality. While the Court was forthright that constitutional values override social prejudices, it also recognized limits on the judicial ability to change long-established social institutions. This sets up a paradox: the Court recognizes that the exclusion of same-sex couples from marriage conflicts with constitutional values but declines to provide a remedy, leaving the task to the legislature.[22]

3. The Conditional Route to Marriage Equality

This decision is a recognition on the part of the judge of the broader social and cultural ramifications of the judicial redescription of marriage. Of course, by letting the legislature do the changing, the Court drives home the point that it's societal harmony that must be brought about to bring about change. But there are well-known ill consequences. That is to say that this leaves the LGBTQIA+ community in limbo: the theory of the law accepts rights but the practice denies them. Thus, this decision of the court reveals the ambiguity between the role of the judiciary in implementing constitutional rights and the latter's unwillingness to take the lead in change in a society where legislative inertia seems dominant.

4. Recognition of Unions: A Partial Victory

Although the Court did not grant the right to marry, it granted same-sex couples a right to unite. That is the first concrete step toward exercising constitutional recognition of nontraditional unions.[23] However, this recognition is incomplete without a corresponding formal legal framework since rights in marriage continue to deny the same-sex couples’ gamut of constitutional entitlements on rights to property, adoption, and inheritance. The judgment thus emerges as a partial victory for LGBTQIA+ rights, with continued advocacy and legislative engagement required to gain full equality.

Conclusion

Supriyo v. Union of India marks an achievement and restraint as part of the struggle towards LGBTQIA+ rights. The Court articulated a middle course that upholds constitutional values in unanimously guaranteeing dignity and self-governance for same-sex couples even while deferring questions of marriage equality to the legislature to make necessary adjustments in the face of societal resistance. This judgment shines a spotlight on the need for legislative reform and societal acceptance of full marriage equality.

This reminds us that the road to equality requires legal recognition as well as social change. This case underlines the constraints of judicial intervention in changing social norms and institutions as well as the role of advocacy in influencing public opinion and legislative action. It thus remains to pose the further question of how and when the legislature will move in practice to implement this constitutional imperative of equality into the legal framework, all as a reflection of the tension that exists between the ideals of the constitution and the realities of society.

References

[1] Supriyo v. Union of India, 2023 INSC 920.

[2] India Const. art. 14.

[3] India Const. art. 15.

[4] India Const. art. 19.

[5] India Const. art. 21.

[6] Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.

[7] Supriyo v. Union of India, 2023 INSC 920, p. 68.

[8] Id. at p. 110.

[9] Id. at pp. 74-76.

[10]Id. at p. 85.

[11] Id. at p. 140.

[12] Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.

[13] Supriyo v. Union of India, 2023 INSC 920, p. 142.

[14] Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.

[15] Supriyo v. Union of India, 2023 INSC 920, p. 81.

[16] Id. at p. 72.

[17] Id. at p. 150.

[18] Id. at p. 155.

[19] Id. at p. 197.

[20] Id. at p. 202.

[21] Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.

[22] Supriyo v. Union of India, 2023 INSC 920, p. 211.

[23] Id. at p. 157.