|CITATION||W.P.(C) No. 1011/2022Diary No. 36593/2022|
|DATE OF JUDGMENT||17 October, 2023|
|COURT||SUPREME COURT OF INDIA|
|PETITIONERS||SUPRIYO CHAKRABORTY, ABHAY DANG, PARTH PHIROZE MEHROTRA, UDAY RAJ ANAND|
|RESPONDENT||UNION OF INDIA|
|BENCH||D.Y.CHNDRACHUD CJI, S.K..KAUL J,S.R.BHAT J,HIMA KOHLI J, P.S.NARSIMHA J|
This case is a collection of landmark cases of the Supreme Court of India, which were filed to consider whether to extend right to marry and establish a family to sexual and gender minority individuals in India.A five-judge Constitution Bench, consisting of Chief Justice of India D.Y.Chandrachud, Justice S.K. Kaul, Justice S.R Bhat, Justice Hima Kohli and Justice P.S. Narasimha, heard 20 connected cases brought by 52 petitioners.
The petitioners, couples and individuals from sexual and gender minority communities, request recognition of the right to marry and establish a family based on protections from discrimination, the right to equality, dignity, personal liberty, privacy, and personal autonomy, and freedom of conscience and expression.
FACTS OF THE CASE
On November 14th, 2022, a significant legal milestone was reached in India when two same-sex couples, Supriyo Chakraborty and Abhay Dang, as well as Parth Phiroze Merhotra and Uday Raj Anand, filed writ petitions in the Supreme Court. Their petitions revolve around the constitutionality of the Special Marriage Act, 1954 (the Act), particularly focusing on Section 4(c), which currently restricts marriage to a ‘male’ and a ‘female’.
These brave petitioners argue that this restriction unjustly discriminates against same-sex couples, depriving them of essential matrimonial benefits, including opportunities like adoption, surrogacy, and employment and retirement benefits. They have petitioned the Court to declare Section 4(c) of the Act as unconstitutional, a plea that has been associated with various other petitions challenging different personal laws on similar grounds, including the Hindu Marriage Act, 1955, and the Foreign Marriage Act, 1969.
Their argument is firmly grounded in the belief that the non-recognition of same-sex marriage infringes upon fundamental rights, such as equality, freedom of expression, and human dignity. To support their case, they have cited two landmark judgments, NALSA vs. Union of India (2014) and Navtej Singh Johar vs. Union of India (2018), which not only recognized non-binary gender identities but also ensured equal rights for homosexual individuals.
On November 25th, 2022, the Supreme Court, under the leadership of Chief Justice D.Y. Chandrachud and Justice Hima Kohli, took a significant step by issuing an Order. This Order directed the Union to respond to the petitions, setting the stage for a legal discourse on the recognition of same-sex marriages in India. It’s worth noting that similar petitions are pending before the Delhi and Kerala High Courts, suggesting a growing momentum towards recognizing the rights and equality of the LGBTQ+ community in India.
On January 3rd, 2023, Senior Advocate Menaka Guruswamy and Advocate Karuna Nundy requested a 2-Judge Bench, consisting of CJI Chandrachud and Justice P.S. Narasimha, to transfer two similar petitions from the Delhi and Kerala High Courts to the Supreme Court. The Bench agreed to list the transfer petitions alongside the main petition on January 6th, 2023.
On January 6th, 2023, a 3-Judge Bench, led by Chief Justice D.Y. Chandrachud, along with Justices P.S. Narasimha and J.B. Pardiwala, transferred 9 pending petitions dealing with similar issues from the Delhi and Kerala High Courts to itself.
On March 13th, 2023, a 3-Judge Bench headed by CJI D.Y. Chandrachud referred the case to a 5-Judge Constitution Bench, which is set to commence hearings on April 18th, 2023.
On May 11th, 2023, the 5-Judge Bench reserved judgment after 10 days of hearings.
A significant date to mark is October 17th, 2023, when the 5-Judge Bench is scheduled to pronounce its verdict on the petitions seeking marriage equality for LGBTQIA+ persons, a decision that holds great importance for the rights and freedoms of these individuals in India
1.Do members of the LGBTQIA+ community have a right to marriage?
2.If members of the LGBTQIA+ community have a right to marry, can the SC make a declaration to this effect?
3. Does the non-inclusion of LGBTQIA+ marriages under the Special Marriage Act, 1954 amount to discrimination under Article 14?
CONTENTIONS OF APPEALENT
- The petitioners presented a compelling argument based on a series of legal principles and precedents. They contended that the exclusion of couples from sexual and gender minority communities from marriage laws violated fundamental rights, particularly highlighting the issues with notice and objection provisions in the Special Marriage Act and Foreign Marriage Act. By invoking Article 32 of the Indian Constitution, which empowers the Supreme Court to safeguard fundamental rights, they asserted their right to approach the court.
- Under Article 14 of the Indian Constitution, which ensures the right to equality, the Supreme Court’s pronouncement that any law failing to protect an individual’s self-determination of sexual orientation and gender identity is irrational and arbitrary was cited. Furthermore, the concept of substantive equality was recognized in cases like Lt. Col. Nitisha v. UOI and Deepika Singh v. Central Administrative Tribunal, emphasizing equal protection under the law for atypical families, including relationships between sexual and gender minority individuals.
- Building upon the Supreme Court’s establishment of fundamental rights for sexual and gender minority individuals in NLSA v. UOI, Puttaswamy v. UOI, and Navtej Singh Johar v. UOI, the petitioners sought to extend the right to marry and establish a family to these communities based on multiple constitutional articles.
- The argument also drew strength from High Court decisions, such as the Madras High Court’s ruling in Arun Kumar v. Inspector General of Registration, which declared that the refusal to register the marriage between a Hindu cisgender man and a Hindu transgender woman violated fundamental rights as guaranteed under various articles of the Indian Constitution.
CONTENTIONS OF REPONDENT
- The concept of marriage inherently assumes a union between individuals of opposite genders, deeply entrenched in our social, cultural, and legal fabric. This definition should remain untouched by judicial interpretation, with any potential alterations reserved for competent legislative bodies.
- The nature of marriage varies based on personal laws. Among Hindus, it’s a sacred sacrament, emphasizing mutual duties between a man and a woman. In Islam, it’s a contract, yet still restricted to a biological man and woman. Requesting the court to alter this long-standing legislative policy, deeply rooted in religious and societal norms, would be impermissible.
- Despite the decriminalization of Section 377 of the Indian Penal Code, the Petitioners cannot assert a fundamental right to have same-sex marriages recognized under the country’s laws. This has been explicitly clarified by the Hon’ble Supreme Court in the case of Navtej Singh Johar v. Union of India (2018) 10 SCC 1, where it stated that while individuals have a right to union under Article 21 of the Constitution, it doesn’t necessarily mean marriage.
- Marriage in India, as recognized by personal and codified laws such as the Hindu Marriage Act, 1955, Christian Marriage Act, 1872, and others, is a union between a biological man and a biological woman. This institution carries significant social and legal implications, extending beyond mere recognition. Family matters, which encompass rights and responsibilities, are distinct from the legal recognition of same-sex marriage.
- Registering marriages between same-sex individuals would also violate existing personal and codified laws, including regulations concerning prohibited relationships, conditions of marriage, ceremonial and ritual requirements, and more. The legislative framework surrounding marriage, divorce, alimony, and related matters is exclusively within the jurisdiction of the Legislature.
- The legislative understanding of marriage in India is explicit – it is a union between a biological man and a biological woman. This definition is evident in various statutes, personal laws, and penal laws, which use specific terms like “husband” and “wife,” “male” and “female,” “bride” and “bridegroom,” among others. This reflects the clear legislative policy in India, and it’s not within the Court’s purview to change this policy.
In a 3:2 majority, the Supreme Court reached a significant verdict regarding the legal recognition of same-sex marriage. The majority, comprising three judges, declined to grant legal recognition to same-sex marriages. They asserted that the right to marry is not inherently a fundamental right, emphasizing that it falls under the purview of Parliament to make determinations regarding the legalization of same-sex marriage.Furthermore, the majority judges maintained that Section 4(c) of the Special Marriage Act, a key piece of legislation in question, does not infringe upon the fundamental rights of same-sex couples. Their rationale centered around the belief that same-sex couples possess alternative legal avenues, such as live-in relationships and civil partnerships, which adequately address their needs.
In contrast, the dissenting judges, Justices D.Y. Chandrachud and Hima Kohli, held a contrary viewpoint. They firmly asserted that the right to marry should indeed be regarded as a fundamental right. Furthermore, they argued that Section 4(c) of the Special Marriage Act does indeed violate the fundamental rights of same-sex couples. In the dissenting judges’ perspective, the right to marry is an integral aspect of an individual’s right to life and personal liberty. They contended that same-sex couples should enjoy the same marriage rights as their heterosexual counterparts.This divided ruling underscores the complex and contentious nature of the debate surrounding same-sex marriage in the legal landscape. The majority’s decision entrusts the matter to legislative action, while the dissenting judges advocate for the immediate recognition of the fundamental right to marry for all couples, irrespective of gender or sexual orientation
On the one hand, the majority’s decision to refuse to grant legal recognition to same-sex marriage is disappointing. The majority’s reasoning is problematic in a number of ways. First, the majority’s claim that the right to marry is not a fundamental right is not supported by the Constitution of India. Second, the majority’s claim that same-sex couples have other legal options available to them is misleading. Live-in relationships and civil partnerships do not provide same-sex couples with the same legal rights and protections as marriage.
On the other hand, the dissenting opinion by Justices Chandrachud and Kohli is a strong and well-reasoned argument in favor of same-sex marriage. The dissenting judges correctly recognize that the right to marry is a fundamental right, and that same-sex couples have the same right to marry as heterosexual couples.
Overall, the Supreme Court’s decision in Supriyo v. Union of India is a mixed bag. It is a setback for the LGBTQ+ community in India, but the dissenting opinion gives hope that the Supreme Court may one day legalize same-sex marriage in India.
The Supreme Court’s ruling in Supriyo v. Union of India undoubtedly constitutes a significant setback for the LGBTQ+ community in India. The decision, which refused to grant legal recognition to same-sex marriage and placed the matter in the hands of the Parliament, was met with disappointment and frustration by advocates of LGBTQ+ rights.
However, amidst this setback, there is a glimmer of hope emanating from the dissenting opinion articulated by Justices Chandrachud and Kohli. Their dissenting stance, which passionately argued that the right to marry is indeed a fundamental right and that Section 4(c) of the Special Marriage Act infringes upon the rights of same-sex couples, provides a beacon of optimism. Their perspective highlights the possibility that, in the future, the Supreme Court might reconsider its position and take steps towards legalizing same-sex marriage in India.
While the majority opinion delivered a discouraging outcome, the dissenting voices of Justices Chandrachud and Kohli serve as a reminder that the fight for equality and LGBTQ+ rights in India continues, and that there may be a path toward a more inclusive and progressive stance on same-sex marriage in the country
written by Ratna Singh an intern under legal vidhiya.