Name of the Case – Supriyo @ Supriya Chakraborty & Anr. Versus Union Of India

Equivalent Citations – Supreme Court of India, Writ Petition (Civil) No. 1011 of 2022.

Bench – Dr DY Chandrachud (CJI) , Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli,PS Narasimha

HISTORICAL BACKGROUND

The Supreme Court of India, in Navtej Singh Johar v. Union of India, struck down Section 377 of the Indian Penal Code to the extent it criminalized consensual sexual activities among adults, declaring it unconstitutional. The court observed that Section 377 violated Articles 14, 15, and 19(1)(a) of the Constitution by discriminating against LGBTQ individuals and infringing upon their rights to equality, non-discrimination, and privacy. The judgment emphasized that sexual orientation is an intrinsic trait and affirmed the LGBTQ community’s entitlement to full constitutional rights, thereby acknowledging their right to choose partners and enjoy equal citizenship without discrimination.

Despite decriminalization, the LGBTQIA+ community continues to face societal violence, discrimination, and ostracism. Social norms, historically influenced by laws like Section 377, perpetuate stigma and exclusion in various aspects of public and private life, including education, employment, healthcare, and housing. Instances of family and police violence against queer individuals highlight the persistent challenges they face. The State’s lack of proactive measures to sensitize the public and ensure the community’s inclusion exacerbates their marginalization, often pushing them into a proverbial closet and subjecting them to mental and physical abuse.

The petitioners in this case argue that the State, by not recognizing same-sex marriages, formally discriminates against the LGBTQIA+ community. They seek legal recognition of their relationships under the equality provisions of the Constitution, asserting that denying them the right to marry constitutes unjust exclusion from a fundamental civic institution. The petitioners do not seek special privileges but demand equal treatment and the same legal benefits available to heterosexual couples, underscoring their right to be treated with dignity and respect in society.

PETITIONERS ARGUMENTSTop of Form

It was contended by petitioners that the Court’s jurisprudence on LGBTQIA+ rights upholds their dignity, equality, and privacy, including the right to marry. It was further contended that Articles 19 and 21 of the Constitution guarantee this right and that the Special Marriage Act (SMA) violates LGBTQIA+ individuals’ right to dignity and autonomy under Article 21. It was further emphasized that excluding LGBTQIA+ persons from the SMA is discriminatory under Article 15 and arbitrary under Article 14, lacking a rational nexus to any legitimate state purpose. It was further asserted that denying same-sex marriages inflicts personal and economic harm, while recognizing these marriages aligns with constitutional morality and global consensus.

It was further argued that the SMA’s exclusion of same-sex couples discriminates based on sexual orientation, violating Articles 14, 15, 19, and 21. It was further maintained that marriage is a fundamental societal institution providing validation, dignity, and legal benefits. It was further proposed that the SMA be read in a gender-neutral manner to include LGBTQIA+ couples, aligning with constitutional principles and contemporary social norms. It also asserted that the SMA’s original intent was to facilitate marriages outside social acceptability, and its exclusion of LGBTQIA+ marriages is unconstitutional. It was further emphasized that civil unions are not an equivalent alternative, as they imply inferiority of LGBTQIA+ relationships.

RESPONDENTS ARGUMENTS (UOI)

Solicitor General appearing for the Union of India contended that, marriage is pivotal for human sustenance and progression, involving companionship, sexual intimacy, and procreation. Constitutionally, marriage is not a recognized right. Expressions of sexuality are protected under Article 19(1)(a), but marriage is not covered under freedom of expression or union rights. Historically, the Supreme Court has not identified marriage as a constitutional right, and statutes regulate marriage, setting conditions like age, monogamy, and prohibited relationships. The State is not obligated to recognize all relationships, focusing on those with a legitimate state interest, primarily heterosexual unions for societal sustenance. Decriminalization of homosexuality does not mandate state recognition of same-sex marriages, considered a privilege contingent on societal norms. The court lacks authority to legalize non-heterosexual marriages, which could legitimize polygamy or incest. Marriage, a public institution, is highly regulated. Non-heterosexual parenting lacks adequate support data, and recognition might undermine heterosexual marriages. Legal amendments to the Special Marriage Act (SMA) for gender neutrality would disrupt existing legal frameworks.

JUDGEMENT

Minority View

Chief Justice Chandrachud disagreed with the petitioner’s assertion that marriage is an inherent right free from state regulation. The minority opinion maintained that state-regulated marriage is essential for its social and legal significance. On amending the Special Marriage Act, Chief Justice Chandrachud asserted that such amendments fall within the legislature’s domain and cannot be made by the court. The minority view also highlighted that excluding same-sex couples from adoption reinforces existing disadvantages faced by the queer community and stressed that parenting ability should not be judged based on sexual orientation. The Chief Justice held that unmarried couples, including queer couples, should be allowed to jointly adopt children, declaring that Regulation 5(3) of the CARA Regulations, which prohibits such adoptions, violates Article 15 of the Constitution.

Majority View

Justice Ravindra Bhat stated that the case was not one where the Supreme Court could mandate the state to create a new legal status. He opined that the Special Marriage Act could not be interpreted to include same-sex couples, as the Act’s objective was to facilitate inter-caste and inter-religious marriages, not same-sex marriages. He emphasized that any legislative amendments to include same-sex marriages fall within the purview of Parliament, not the judiciary. The majority opinion also diverged from the Chief Justice’s stance on queer couples’ right to adopt, asserting that Regulation 5(3) of the CARA Regulations could not be deemed unconstitutional.

CASE COMMENT

The Jurisdictional Issue

Chief Justice D.Y. Chandrachud affirmed the importance of judicial review, asserting that the Supreme Court is the appropriate forum to consider the marriage rights of queer individuals. He countered the Union government’s April-May 2023 argument, which claimed that such judicial intervention would violate the doctrine of separation of powers, emphasizing that judicial review is integral to this doctrine. Hence, the Court can evaluate potential violations of queer persons’ fundamental rights. Conversely, Justice Bhat maintained that while the Court might recognize the absence of necessary measures, it must refrain from encroaching on the roles constitutionally assigned to the Legislature and Executive, acknowledging that addressing discriminatory impacts requires legislative action, not judicial creation of new legal regimes.

The difference hence was realised regarding role of judiciary in intervening in the matters involving fundamental right. The Supreme Court has time and again prove its promptness and adherence to the duties of securing the fundamental rights by assuming the jurisdiction even in the absence of any substantive law dealing with the same. Moreover, necessary steps to address the matters such as issuance of appropriate guidelines and directions have been taken by the court. However, here the court has desisted from any such grave measure considering the nature of rights involved, the specific prayers of the petitioners and inherent constitutional constraints and limitation of their powers.

Right To Marry As A Fundamental Right

Chief Justice D.Y. Chandrachud asserted that the Constitution does not explicitly recognize a fundamental right to marry, noting that marriage laws are enacted by Parliament and can be amended by state legislatures. He emphasized that state legislatures that have not established a marriage institution would be obligated to do so under the positive right to marry. Petitioners cited Shafin Jahan v. Asokan K.M. (2018) and Shakti Vahini v. Union of India (2018) to argue for marriage as a fundamental right. However, CJI Chandrachud clarified these cases involved state and non-state interference in marriages otherwise permitted by law and were not applicable to same-sex marriages. Justice S.R. Bhat concurred, highlighting that marriage is a societal construct existing independently of the state, which can regulate but not abolish it. He argued that recognizing marriage as a fundamental right would require state action to create supportive conditions, which courts cannot mandate. Justice Narasimha added that marriage is a fundamental freedom, not an enforceable right.

Here, the court specifically engaged in exercise of differentiating between rights as a matter of guaranteed freedom and a guaranteed fundamental right. It was observed that although a freedom has acquired a certain legal authority and encompasses within its realms several other rights, this does not ipso jure make them a fundamental right. This becomes an extremely important aspect since several social institutions have over the period of time, with a necessity of regulation, have acquired legal recognition. Claiming reliefs of making them immune from legislative framework in the garb of them acquiring the status of fundamental rights can become problematic.

Right To Enter Into a Civil Union

Chief Justice D.Y. Chandrachud, in the minority, asserted that queer couples have the right to enter into civil unions, emphasizing that this right is integral to self-development and is protected under Article 19’s freedoms of speech, expression, and association. He noted that sexual orientation is part of Article 15, thus prohibiting civil unions based on sexual orientation is discriminatory. CJI Chandrachud dismissed the Union government’s concerns about social chaos as unfounded, stating the state is obligated to recognize these relationships and extend the same benefits as those given to heterosexual couples. Justice S.K. Kaul concurred, linking the right to form civil unions to Articles 19 and 21, and advocating for equality regardless of sexual orientation and gender. However, Justice Bhat, representing the majority, acknowledged the right of queer individuals to relationships and cohabitation under Article 21 but contended that establishing a civil union requires a new legal framework, which is beyond the Court’s purview. Justice Narasimha too submitted his agreement, citing the separation of powers doctrine.

Here, the even the court unanimously agreed on the aspect of civil union as a matter of right by every individual. However, considering the nature and extent of the prayers, a definite legal framework was the chief aspect. The court, though agreed with the cause, denied the case owing to the constitutional limitations. It tried to strictly adhere to the difference or recognition and regulation. Thought the former can by undertaken by judicial wisdom, the latter, needs to be submitted to the will of legislature. Many a times this difference appears to be fine. However, exercise of judicial powers of issuance of directions and temporary guidelines, as a basic legal framework was too avoided by the courts considering the nature of right involved. Marriage and civil union being freedoms and not fundamental rights, court believed in observing its constitutional limitations and agreed on submitting the same to the legislative deliberation.

Constitutionality of the Special Marriage Act, 1954

Petitioners argued that the Special Marriage Act (SMA) violated the right to equality by excluding non-heteronormative marriages, thus discriminating against non-heterosexual individuals. Chief Justice Chandrachud acknowledged that declaring Section 4 of the SMA unconstitutional would undermine the Act’s intent to promote interfaith and inter-caste marriages, reverting societal progress to pre-independence inequality and intolerance. Conversely, Justice Kaul asserted that the SMA violates Article 14 due to its unjustifiable distinction between heterosexual and non-heterosexual individuals. He applied the two-pronged test for equality, finding no reasonable nexus between the Act’s purpose and its exclusion of queer couples. Justice Bhat cited precedents affirming that classifications under Article 14 are only unconstitutional without a reasonable basis. He emphasized the SMA’s original intent to facilitate interfaith marriages, noting that same-sex relations were illegal when the law was enacted. Thus, the Act’s exclusion of non-heterosexual couples did not violate Article 14, as it did not pertain to the law’s primary objective.

Here, the court appeared to be divided owing to the incomplete legislative framework of the legislation in question. The legislation failed to accommodate alternative social realities in its ambits and proved to  be a barrier in progressive inclusion. This barrier, seemed to impede the rights of marriage and union of the queer couples. It was hence pleaded to be set aside. However, the majority believed that incapacity or incomplete nature of the legislation cannot deny its constitutional validity. The law is time bound and always suffer from infirmities and limitation. That cannot be the ground to render it unconstitutional. Moreover, owing to the lack of awareness or demand, the legislation pertained to the specific ambits itself. Hence, though the infirmities were accepted, unconstitutionality was denied.

The Interpretative Outlook in the Existing Legislative Framework

The Supreme Court’s deliberation on the Special Marriage Act (SMA) in the context of queer marriage underscores significant judicial restraint and deference to legislative authority. CJI Chandrachud, emphasizing institutional limitations, refused the “workability model” proposed by petitioners. He highlighted the infeasibility of modifying Section 4 without inadvertently redrafting extensive related laws, thus breaching the doctrine of separation of powers. Justice Kaul concurred, noting the potential cascading legal complexities and recognizing the broader structural discrimination against non-heterosexual individuals. Both justices underscored the judiciary’s limited capacity to provide comprehensive remedies in the face of pervasive social inequities.

Justice Bhat’s opinion further delineated the interpretive boundaries of judicial review. He cautioned against construing statutes in ways fundamentally divergent from legislative intent, particularly concerning gender-specific laws like the SMA. A gender-neutral interpretation, he argued, would complicate legal protections and remedies designed for women, thereby undermining hard-fought legislative gains. Bhat’s reasoning reflects a cautious approach, prioritizing the original objectives of the SMA while acknowledging the intricate balance between judicial interpretation and legislative enactment. This case comment encapsulates the judiciary’s careful navigation between advancing equality and respecting legislative prerogatives.

Right to Adoption for Non-Heterosexual Couples

The petitioners contested Regulation 5(3) of the 2020 Central Adoption Resource Authority Guidelines and Section 57(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, which mandates joint adoption consent by married couples. Chief Justice D.Y. Chandrachud noted that Section 57 of the JJ Act does not explicitly prohibit unmarried couples from adopting, using the term “spouse” instead of “married couples”. It was found the Regulation inconsistent with the JJ Act and alleged it violates Articles 14 and 15 of the Indian Constitution by discriminating against unmarried couples. The court also criticized the Regulation’s reliance on marital status as vague, lacking empirical support from the Union to justify it as necessary for child welfare.

However, Justice Ravinder Bhat, leading the majority, disagreed with Chandrachud, affirming that Section 57(2) of the JJ Act confines adoption to married couples to safeguard children in cases of marital breakdown. It was stressed marriage’s protective framework for children, encompassing legal safeguards like custody and maintenance. It was further acknowledged that the lack of legal recognition for queer couples compels them to adopt individually, thereby depriving both parents and children of legal protections. It was further however underscored the state’s responsibility to ensure comprehensive rights for queer families, optimizing child welfare and development in safe, secure environments. Here the courts outlook appears to be more protective and children oriented. However, the need of reforms was duly observed and advocated by the court.

Right Of Transgenders to Marry

CJI Chandrachud ruled that transgender individuals have the right to marry within the framework of existing marriage laws and the Transgender Persons Act, 2019, through a harmonious interpretation. He argued that these laws traditionally define marriage in terms of a union between a “man” and a “woman,” but restricting this definition would contravene the Transgender Persons Act, which forbids discrimination against transgender individuals based on their gender identity rather than sexual orientation. It was further emphasized that transgender status is determined by gender identity, distinct from sexual orientation. The court hence acceded to the view of incorporation of other genders broadening the horizon of the court. This portrays the reformative outlook of the court with due consideration to the plight of the victims. However, the judicial discipline and adherence to the constitutional limitations is too balanced by the court.

CONCLUSION

The case and the decision deliberated upon one of the most crucial and widely affecting issue of right to marry and inclusional alternative social realities. Though the court acknowledged the cause, the constitutional limitations prevented it from any advanced step. The court held several matters unanimously and certain divided.  Supreme Court of India addressed the pivotal issue of marriage rights for transgender persons. Chief Justice Chandrachud underscored that existing marriage laws, while traditionally framed in binary terms, must harmoniously interpret with the Transgender Persons Act, 2019 to uphold the rights of transgender individuals to marry based on their gender identity. This decision reinforces the Act’s mandate against discrimination, affirming that transgender status pertains to gender identity, not sexual orientation. The Court’s ruling signifies a crucial step towards inclusivity, ensuring that transgender persons enjoy fundamental rights without discrimination in matters of marriage under Indian law.

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