SAME-SEX MARRIAGE AND CONSTITUTIONAL LIMITS: An Analysis Of Supriyo @ Supriya Chakraborty V. Union Of India (2023)

CASE TITLE: Supriyo @ Supriya Chakraborty & Anr. v. Union of India[1]

CITATION: (2023) SCC Online SC 1348(India).

COURT: Supreme Court of India

BENCH: Constitution Bench Comprising Dr. D.Y. Chandrachud, CJI; S.K. Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha, JJ.

DATE OF JUDGMENT: 17 October 2023

RELEVANT STATUTE & KEY PROVISIONS:

The case primarily involved the interpretation and application of the following constitutional and statutory provisions:

1. CONSTITUTION OF INDIA

1. Article 14 (Equality before Law)[2]: The petitioners relied on Article 14 to argue that excluding same-sex couples from the institution of marriage amounts to arbitrary discrimination and denial of equal protection of laws.
2. Article 15 (Non-discrimination)[3]: It was contended that discrimination on the ground of sexual orientation is impermissible, as recognised in earlier jurisprudence.
3. Article 19(1)(a) and 19(1)(c)[4]: Arguments were advanced regarding the freedom of expression and association, including the right to express one’s identity and form intimate associations.
4. Article 21 (Right to Life and Personal Liberty)[5]: The petitioners asserted that the right to dignity, autonomy, privacy, and the freedom to choose a partner are integral to Article 21.

2. SPECIAL MARRIAGE ACT, 1954

• Section 4[6]: Prescribes the conditions for a valid marriage, using gender-specific terms such as “male” and “female,” which formed the central statutory barrier to the recognition of same-sex marriages.
• Sections 12, 15, and 27[7]: These provisions relating to void marriages, registration, and divorce were also discussed to demonstrate the interlinked heterosexual framework of the Act.

The Court examined whether these provisions could be read in a gender-neutral manner through constitutional interpretation.

BRIEF FACTS:

The present case arose from a batch of writ petitions filed before the Supreme Court of India seeking legal recognition of marriage between persons of the same sex. The petitioners comprised same-sex couples who argued that the denial of marital recognition violated their fundamental rights guaranteed under the Constitution of India. They sought either an interpretation of existing marriage laws, particularly the Special Marriage Act, 1954 (SMA) to include same-sex couples, or alternatively, a declaration recognising a fundamental right to marry irrespective of sexual orientation.

The petitioners contended that the absence of legal recognition resulted in tangible civil disadvantages, including denial of adoption rights, inheritance, pension, insurance benefits, medical decision-making authority, and social security. The matter was placed before a Constitution Bench due to its significant constitutional implications, particularly involving equality, dignity, autonomy, and the scope of judicial power.

The Union of India opposed the petitions, asserting that marriage in India has always been understood as a heterosexual institution and that any alteration to this framework would fall exclusively within the domain of the legislature. The Union further argued that courts cannot rewrite statutory provisions under the guise of constitutional interpretation.

ISSUES INVOLVED:

The principal issues before the Court were:

1. Whether there exists a fundamental right to marry under the Constitution of India.
2. Whether the denial of marriage rights to same-sex couples violates Articles 14, 15, 19, and 21 of the Constitution.
3. Whether the Special Marriage Act, 1954 can be interpreted in a gender-neutral manner to include same-sex couples.
4. Whether the Supreme Court can direct the State to recognise civil unions or extend marital benefits to same-sex couples.

ARGUMENTS:

Petitioners’ Arguments

The petitioners argued that the Constitution guarantees substantive equality and that sexual orientation is an intrinsic part of one’s identity. Relying on earlier decisions such as Navtej Singh Johar v. Union of India, [8]it was contended that discrimination on the basis of sexual orientation is prohibited under Articles 14 and 15. The petitioners further submitted that the right to choose a partner and form a family falls within the ambit of personal liberty [9]and dignity under Article 21.[10]

It was also argued that the Special Marriage Act is a secular legislation intended to facilitate marriage outside personal laws and should therefore be interpreted expansively.[11] According to the petitioners, reading gender-neutral terms into the Act would not amount to judicial legislation but would instead align the statute with constitutional values.

Respondent’s Arguments

The Union of India contended that marriage is a social institution deeply rooted in personal laws and cultural practices. It argued that no fundamental right to marry exists under the Constitution and that recognition of same-sex marriage would have cascading effects on allied laws such as adoption, succession, and guardianship.

The Respondent further maintained that courts must exercise judicial restraint and respect the doctrine of separation of powers. Any change to the existing legal framework, it was argued, must emanate from Parliament after due deliberation.

JUDGEMENT:

The Constitution Bench delivered a unanimous verdict declining to recognise a fundamental right to marry. The Court held that while the Constitution protects the right to choose a partner and cohabit, it does not impose an obligation on the State to formally recognise such relationships through marriage.

By a majority, the Court refused to read gender-neutral language into the Special Marriage Act, holding that such an exercise would amount to rewriting the statute. The Bench observed that the legislative intent underlying the Act clearly envisaged a heterosexual framework and that altering this structure would exceed the permissible limits of judicial interpretation.

However, the Court unanimously acknowledged that queer persons are entitled to equal protection of the law and are not “second-class citizens.” It recognised the discrimination and social stigma faced by the LGBTQ+ community and urged the State to take positive steps to eliminate such disadvantages.[12]

The Court also declined to direct the creation of a legal framework for civil unions, reiterating that such policy decisions fall within the exclusive domain of the legislature.

RATIO DECIDENDI:

The ratio of the judgment can be summarised as follows:

1. There is no fundamental right to marry under the Constitution of India.
2. While the right to choose a partner and cohabit is protected under Article 21, formal recognition of relationships through marriage is a matter of legislative policy.
3. Courts cannot read gender-neutral terms into the Special Marriage Act as it would amount to judicial legislation and violate the principle of separation of powers.

OBITER DICTA:

Although the Court declined to recognise same-sex marriage, several significant observations made by the judges constitute obiter dicta and carry persuasive value:

• The Court unequivocally affirmed that queer persons are entitled to equal citizenship and constitutional protection, and cannot be subjected to social or legal marginalisation.
• It recognised the right of queer couples to cohabit and form relationships of their choice, holding that such relationships are protected under Article 21.
• The Bench urged the State to take positive administrative and policy measures to address the practical difficulties faced by same-sex couples, including issues relating to ration cards, medical consent, and social welfare schemes.
• The Court acknowledged that constitutional morality must prevail over social morality, even though it stopped short of granting enforceable marital rights.

These observations, though not binding, are likely to influence future legislative and judicial developments concerning LGBTQ+ rights in India.

FINAL DECISION:

The Supreme Court unanimously dismissed the prayers seeking legal recognition of same-sex marriage. The final decision can be summarised as follows:

1. The Court held that there is no fundamental right to marry under the Constitution of India.
2. It refused to interpret or read down the Special Marriage Act, 1954 to include same-sex couples, holding that such an exercise would amount to judicial legislation.
3. The Court declined to direct the creation of a legal framework for civil unions, reiterating that the matter lies within the legislative domain.
4. At the same time, the Court affirmed the right of queer persons to dignity, autonomy, and equal protection of law, and recognised their right to choose a partner and cohabit.

CRITICAL ANALYSIS:

The judgment in Supriyo v. Union of India represents a cautious and restrained approach by the Supreme Court. On one hand, the Court reaffirmed its commitment to constitutional morality by recognising the dignity and equal citizenship of queer persons. On the other hand, it declined to extend this recognition into the realm of enforceable marital rights.

While the Court’s concern regarding separation of powers is institutionally sound, the refusal to interpret the Special Marriage Act in a purposive and progressive manner has been widely criticised. Indian constitutional jurisprudence has historically embraced transformative interpretation, particularly where fundamental rights are concerned. The decision appears to mark a departure from this tradition.

The judgment also highlights a recurring tension in Indian constitutional law between recognition of rights and their actual enforcement. Although the Court acknowledged the systemic discrimination faced by same-sex couples, its reliance on legislative action raises concerns given the absence of any concrete legislative initiative in this regard.

Nevertheless, the decision is significant in that it firmly entrenches the constitutional legitimacy of queer relationships and lays the groundwork for future reform. By explicitly recognising the right to choose a partner and cohabit, the Court has ensured that the LGBTQ+ community remains within the protective ambit of Article 21.

[1] 2023 SCC Online SC 1348.

[2] India Const. Art. 14

[3] India Const. Art. 15.

[4] India Const. Art. 19, cl. (1)(a), cl. (1)(c).

[5] India Const. Art. 21

[6] The Special Marriage Act, No. 43 of 1954, Ss. 4 (India).

[7] The Special Marriage Act, No. 43 of 1954, Ss.12,15,27 (India).

[8] (2018) 10 SCC 1.

[9] Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368

[10] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1

[11] The Special Marriage Act, No. 43 of 1954

[12] Justice K.S. Puttaswamy (Aadhaar–5J.) v. Union of India, (2019) 1 SCC 1.