Case Summary:  Supriyo @ Supriya Chakraborty v. Union of India

Introduction

The 2023 landmark case of Supriyo @ Supriya Chakraborty v. Union of India [1] marked a significant ruling on the Indian constitutional frameworks, while answering the question of same sex marriage right along with relevance of right to marry under the ambit of Right to Life and Personal Liberty, Article 21 of Indian Constitution. This case reflects the apex court’s perspective on constitutional morality, fundamental rights and societal aspects. This Case Summary explores the key aspect of facts of case, legal issues, court’s decision along with judicial reasoning and socio-legal impact of same sex marriage within the LGBTQIA+ community.

Bench of Judges

The case was decided by a Constitution Bench of the Supreme Court comprising Chief Justice D.Y. Chandrachud, Justice S.K. Kaul, Justice Ravindra Bhat, Justice Hima Kohli, and Justice P.S. Narasimha. Their Judicial reasoning depicts a range of judicial opinions on constitutional morality and societal norms.

Facts of the Case

The case followed the judgement in the case of Navtej Singh Johar v. Union of India[2], where apex court held Section 377 of Indian Penal Code[3] as Unconstitutional. This case marks a landmark shift to decriminalizing intercourse between same sex. In this case, court affirmed the basic legal rights, dignity and equality for LGBTQA+ community. Following this decision by court, several petitions were filed to seek validity of right to marry for same sex couples. The first petition was filed by Supriyo Chakraborty during November, 2022 to seek recognition of same sex marriage under Special Marriage Act, 1954. The petitioner faced challenges leading a private marriage ceremony during COVID-19 pandemic. The same sex couple denied the legal rights, despite living as a married couple. They argued that the denial of this recognition violated the basic and fundamental rights enshrined under Articles 14, 19, and 21 of the Indian Constitution[4]. The Supreme Court directed the Union of India to respond on 25th November 2022, and transferred similar cases/petitions filed from Delhi and Kerala High Courts. On March 13, 2023, a three Judge Bench referred this case to a five-Judge Constitutional Bench which heard 20 connected cases brought by 52 petitioners. The Union of India opposed the plea, asserting that marriage is a legislative matter deeply connected with societal and cultural values. After hearings starting on April 18, 2023, the Bench pronounce its verdict on petitions seeking marriage equality for LGBTQIA+ persons.

Legal Issues before the court

As per the facts of cases, this summary claims to address the following legal issues that was decided by the court:

• Does the right to marry comes under the ambit of the right to life and personal liberty under Article 21?
• Is the Special Marriage Act of 1954 unlawful because it excludes LGBTQIA+ marriages? Does this exclusion constitute discrimination under Article 14?

Petitioners’ Arguments

Is Right to marry a fundamental right: The petitioners submit the argument that this Court has held that the Constitution guarantees the right to marry in Shafin Jahan[5] and Shakti Vahini[6]. The apex court in its judgement clearly held that right to marry is integral to right to life under Article 21 of the Constitution. On the behalf of petitioners, Mr. Raju Ramachandran argued that the petitioners have a fundamental right to marry a person of one’s own choice as provided by Articles 14, 15, 19, 21 and 25 of the Constitution of India. The denial of this right affects the right to happiness. It was also stated that current law on LGBTQA+ community’s rights affirms that they are entitled to equality, dignity and privacy without any discrimination which includes the fundamental right to marry as well. The petitioners also relied on the judgment of the US Supreme Court in case of Obergefell[7] in which the right to marry was recognized as a fundamental right.  The petitioners also contended that the non-recognition of ‘atypical families’ or ‘chosen families’ beyond constraints of marriage, blood or adoption clearly violates Article 14, 15, 19 and 21.[8]

The learned counsel on the behalf of petitioners argued that international covenants to which India is a signatory including the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights provides a duty on state to not to interfere with the right of person to marry and these covenants also protects the familial rights of all persons irrespective of sexuality, race, and religion.[9] It was also argued that procreation is not the sole purpose of marriage. Marriage is not only the mating of two individuals but broadly speaking – it is the union of two souls.

Exclusion of LGBTQIA+ couples under the Special Marriage Act, 1954 violated the Article 14: As per the arguments submitted by Ms. Geetha Luthra, learned senior counsel, The SMA and the FMA are violative of Article 14 of the Constitution because they deny LGBTQIA+ persons the equal protection of laws, are manifestly arbitrary, and fail the rational nexus test. There is no obvious distinction between couples who identify as LGBTQIA+ and other couples.[10] The petitioner also argued that the Special Marriage Act ought to be read to include the words “spouse” and “person” so as to include transgender persons within its ambit. Failure to do so, amounts to encompasses equality and equal protection of law a provided by Article 14 of the Constitution. This act clearly discriminates based of sex, sexuality and gender identity, being it a violative of Article 15 of the Constitution. Petitioner counsel Mr. Mukul Rastogi contended that SMA violates the LGBTQIA+ community’s right to dignity, which violates Article 21 of the Constitution, as Special Marriage Act, excludes the LGBTQIA+ community.

Respondent’s Arguments

Right to marry is not a fundamental right: Learned Solicitor General, Mr. Tushar Mehta, appearing for the Union of India, submitted that the marriage institution enjoys a central role in the progression of humankind, which consists of the components – sexual intimacy, championship and the most important- procreation. From the perspective of an individual, marriage serves a purpose of sustaining one’s gene pool. While from the societal point of view, it serves as proliferation of future generations for the sustenance of humankind. It was argued that the Constitution does not recognize right to marry. Although Article 19(1)(a) provides for the protection of an expression of a person’s sexuality, yet marriage cannot be traced to right of freedom of expression or to form unions. It was also submitted that the court in the previous observation in different cases such as Shafin Jahan and Shakti Vahini, right to marry is conferred by the parliament to inter-religion and inter caste couples. The court do not specifically recognize the right to marry in same sex or non-heterosexual couples. While Mr. R. Venkataramani, learned Attorney General of India appearing on the behalf of the Union of India, argued that the apex court has already issued several constitutional declarations on the right to marry and right to form a family of non-heterosexual persons in Navtej Singh Johar case. It was submitted that petitions in this case relate to fitting the constitutional declaration into relevant laws. In Navtej Singh Johar v. Union of India, the court exclusively protected non-heterosexual couples’ personal and immediate privacy zones, and not the right to marry.[11]

The Special Marriage Act, 1954, is not violative of Article 14, as it is not a general law: The respondent submitted that SMA is a species of the general marriage laws, not a general law on marriage. The institution of marriage is conceived to be a union between heterosexuals couples across all laws and procreation is its essential aspect. It was contended that there was no existence of non-heterosexuals’ union during the enactment of SMA. Therefore, SMA is intended to cover marriage in the cases of heterosexual couples only, thus it cannot be said as unconstitutional due to its under inclusiveness. It will be said to a violative, if the class of heterosexuals would be excluded in the statue.

It was submitted on the behalf of Union of India, SMA was enacted for a heterosexual couple and to enact a different legislation on other than heterosexual will be on the parliament.

Judgment

The Bench including (Chief Justice D.Y. Chandrachud, Justice Sanjay Kishan Kaul, Justice P.S. Narasimha, Justice Ravindra Bhat and Justice Hima Kohli) with a 3:2 majority on the bench held that marriages between LGBTQA+ community cannot be covered by the Special Marriage Act of 1954 and there is no basic and fundamental right to marry.

Ratio Decidendi

Majority reasoning: Justice Bhat and Justice Hima Kohli agreed with the CJI D.Y Chandrachud that “everyone who identifies as queer has the right to a relationship and choice of partner, cohabit and live together, as an integral part of choice.” Which Article 21 of the constitution already recognised.

The majority questioned the need for a new statute to establish a civil right to a union/ marriage. Justice Narasimha agreed with Justice Bhat that requiring the state to recognise a civil union would violate the doctrine of separation of powers. He further emphasised that marriage is a basic freedom rather than a right. According to case precedents, classification does not imply exclusion unless the excluded group is also part of the included class. According to Justice Bhat, the SMA’s “sole intention” is to encourage marriage amongst people of various religions and castes. At the time the when law was passed, consensual same sex sexual relationships remained unlawful. [12]

Minority reasoning: Chief Justice D.Y. Chandrachud and Justice Sanjay Kishan Kaul, agreed on the argument that a restriction based on ‘sexual orientation’ on right to enter into union would violate the Article 15, as it incorporates the word sex and implies gender and sexual orientation. As per the opinion of CJI, freedom of speech and expression along with the ability to organize associations both are protected by Article 15, which includes right to enter into ‘civil unions’ in its ambit.

However, the judgements of the CJI differed from Justice Kaul’s opinion about the constitutional validity of the SMA. While Justice Kaul claims that the SMA violates Article 14 of the Constitution as it discriminates against the LGBTQIA+ community. While CJI Chandrachud is of opinion that declaring the SMA invalid would undermine the purpose of the Act’s “progressive legislation” and that changing, adding, or removing words in Sections of the SMA could not be accepted due to its “institutional limitation.”

Conclusion

 The Supriyo v. Union of India judgment represents a pivotal phase in the struggle for LGBTQIA+ rights in India. While it stops short of granting the right to marry, it lays a robust foundation for future socio-legal progress. The judgment’s emphasis on dignity, equality, and non-discrimination is a step forward. It also provides that ultimate realization of these principles will depend on legislative action and societal acceptance. This case is a reminder of the judiciary’s role as both as a guardian of rights and a force for change in dynamic constitutional democracy.

 

References

[1] Supriya Chakraborty vs Union of India,2023 INSC 920: W.P.(C) No. 1011/2022;

[2] Navtej Singh Johar v. Union of India, (2012) 6 SCC 1

[3] Indian Penal Pode 1860, Sec 377

[4] The Constitution of India, 1950, Article 14,19 and 21

[5] Shafin Jahan v. Asokan K.M. (2018) 16 SCC 368, AIR 2018 SC 1933

[6] Shakti Vahini v. Union of India (2018) 7 SCC 192

[7] Obergefell v. Hodges, 576 U.S 644 (2015)

[8] The constitution of India, 1950 Article 14, 15, 19 and 21

[9] Supriya Chakraborty vs Union of India, 2023 INSC 920: W.P.(C) No. 1011/2022, page no. 28

[10] Supriya Chakraborty vs Union of India, 2023 INSC 920: W.P.(C) No. 1011/2022, page no. 32

[11] Supriyo @ Supriyo Chakraborty & Anr. v. Union of India W.P.(C) No. 1011/2022, page no. 35

[12] Supriyo @ Supriyo Chakraborty & Anr. v. Union of India W.P.(C) No. 1011/2022, page no. 254