Supriyo@ Supriya Chakraborty vs. Union of India

INTRODUCTION

Supriyo vs. Union of India is a leading case which deals with the right of marriage of LGBTIQA + community. The Supreme Court of India did not resolve the problem of same sex marriage and left it on legislature to frame laws in relation to same sex marriage. It was held by the apex court that the right to marry is not a fundamental right and the provisions of the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955 are not unconstitutional. Further, the rights of the LGBTQIA + community to marry should be brought by the legislature through legislative reforms. The right to marriage of LGBTQIA + is not violative of their right to privacy under Article 21 of the Indian Constitution of India.

FACTS OF THE CASE

1. In Navtej Singh Johar v. Union of India^[1], the Apex Court of India held that Section 377 is unconstitutional if it criminalizes consensual sexual activities by the LGBTQIA+ community. The consensual sexual activities between the LGBTQIA+ community were made not punishable. Section 377 was held to be violative of Article 14, Article 15, Article 19(1)(a), and Article 21 of the Indian Constitution of India.
2. Also, in Justice K.S. Puttaswamy (Retd) vs Union of India^[2], it was held that the marriage is a personal choice and is an integral part of Article 21 of the Constitution of India.
3. Following the judgement of Navtej Singh Johar v. Union of India various petitions were filed in various high courts to recognise the right to marry of the LGBTQ community.
4. Two writ petitions were filed in the Supreme Court by same sex couples on November 14th, 2022, to provide legal recognition of same-sex marriages in India. The first petition was filed by Supriyo Chakraborty and Abhay Dang and the second petition was by Parth Phiroze Merhotra and Uday Raj Anand. 
5. The petitioners argued to recognise the right to marry of same sex couple under the Special Marriage Act, 1954; Hindu Marriage Act, 1955; and the Foreign Marriage Act, 1969.
6. Further, it was contended by the petitioners that the non- recognition of same-sex marriage is a direct attack on their fundamental rights under Article 14, 15, 19(1)(a) and 21 of the Constitution of India.

ARGUMENTS BY THE PETITIONER

1. It was argued by the petitioners that the State through the current law discriminates against the LGBTQIA+ community by not providing provision for their right to marry.
2. It was argued on behalf of the petitioners that LGBTQIA+ persons are entitled to dignity, equality, and privacy which includes their fundamental right to marry a person as per their choice.
3. The Special Marriage Act, 1954 was argued to be discriminatory against the people belonging to LGBTQIA + community as Section 4(c) of the Act deals with marriage between a male and a female. The Special Marriage Act, 1954 was found to be violative of Article 14, Article 19 and Article 21 of the Constitution of India.
4. Article 14 of the Constitution of India is violated as the act denies equal protection of laws to LGBTQIA + community.
5. Article 15 of the Constitution of India is violated as there is discrimination on the basis of the sexual orientation and the sex of their partner.
6. The exclusion of the same sex couple marriage violates their right to dignity under Article 21 of the Constitution of India.
7. The Hindu Marriage Act, 1955 and the Foreign Marriage Act, 1969 were also contended to be discriminatory against the LGBTQIA community and violative of their fundamental rights as provided under the Constitution of India.

ARGUMENTS BY THE RESPONDENT

1. It was argued by the respondent that the when the Special Marriage Act was enacted there was no legal recognition to the same sex couple. The Special Marriage Act was enacted to regulate marriage between heterosexuals irrespective of caste and religion. The exclusion of LGBTQIA+ community from the act was in accordance with to the prevailing situation at that time. The exclusion of LGBTQIA+ does not make the act itself unconstitutional.
2. It was further argued by the respondent that it is the responsibility of the Parliament to enact a special law to regulate the marriage between LGBTQIA+ community.
3. The purpose of the Special Marriage Act is to regulate the marriage between the heterosexual couple, the court cannot extend the purview of the Special Marriage Act to include in its ambit the homosexual couple.
4. It was further contented on the behalf of the respondent that the marriage rights should only be given by the parliament through legal statute.

LEGAL ISSUES

1. Whether the Supreme Court has authority to hear the case.
2. Whether the Special Marriage Act, 1954; the Hindu Marriage Act, 1955; and the Foreign Marriage Act, 1969 are unconstitutional and discriminatory towards the LGBTQIA+ community.
3. Whether the members of LGBTQIA+ have a fundamental right to marry.
4. Whether by not including the LGBTQIA+ marriages under the Special Marriage Act, 1954 there is violation of Article 14, 15, 19 and 21 of the Constitution of India.

DECISION

The Supreme Court by a 3:2 majority held that Right to marry is not a Fundamental Right under the ambit of Article 21 of Constitution of India. Justice DY Chandrachud and Justice S.K. Kaul ruled in favour of the queer couples and were in minority whereas Justice Bhat, Justice Narasimha and Justice Hima Kohli gave the majority opinion. 

The apex court has stated that the question of marriage between same sex couples has not arise before in the case of Navtej Singh Johar and it cannot be a binding precedent on the court. With regard to whether that the Supreme Court has authority to hear this case it was held by the Justice DY Chandrachud that the Court has power to hear the case as per the judicial review.

The right to marry is not a constitutional right rather it is a statutory right. It is upon the Parliament to frame a statue in relation to the marriage between the same sex couple.

It is not upon the court to legislate a law; it is the obligation of the legislature to legislate.

It was held that the right to marry is not a fundamental right. A distinction was made between right to choose partner of your own chance and right to marriage. The right to choose partner is a fundamental right guaranteed by the constitution whereas the right to marry is not a fundamental right guaranteed by the Constitution. The State should grant recognition to the couple. Choosing a partner to marry and right to marry are two distinct rights. The former is protected under Article 21 of Constitution whereas the latter is a statutory right. Denial of same sex marriage is not an attack on their constitutional privacy.

The Special Marriage Act, 1954; the Hindu Marriage Act, 1955; and the Foreign Marriage Act, 1969 were not held to be unconstitutional.

The dissenting judges held the view that the right to marry should be held as fundamental right. It was also held by them that Section 4 (c) of the Special Marriage Act,1954 opposes the right to marry but Supreme Court cannot strike down provisions of Special Marriage Act as it provides various benefits to the couples. Further, it was held unanimously by the Supreme Court of India that the LGBQTIA+ community members have the right to cohabit  without any threat of violence.

It was directed to Union government by the Apex Court to: 

• constitute a High-powered Committee whose main function will be to make a comprehensive examination of the issues involved in this litigation, and concerns raised by the Courts regarding queer rights; and
• to ensure that the Right to Relationship of queer couples is not interfered with and they do not face any threats of violence or coercion.

It was also directed that the government should act proactively on these recommendations as if not solved for a long time can result into grave injustice. 

The decision was left on the government to either enact a new legislation or introduce amendments to the existing one.^[3]

WAY FORWARD

The Supriyo Vs. Union of India is an important judgement with regard to the LGBTQIA+ community. Although the court provided the acknowledgement LGBTQIA+ community members a right to form relationship, but the court refusal by not recognising the right to marry of LGBTQIA+ community members has received a lot criticism. The judgment has also been criticised for disregarding the international human rights law.

Now it is upon the legislature to take a more forward step and ensure that the queer couple are provided with the right to marry and there is no injustice provided to them.

The legislature should take a proactive role in formulation of the law recognising the right to marry and form a civil union for the LGBTQIA+ community. There is a need of participation by legislature to fill the gap created by the judiciary.^[4]

 

BIBLIOGRAPHY 

1. The Constitution of India, Article 14
2. The Constitution of India, Article 15
3. The Constitution of India, Article 19
4. The Constitution of India, Article 21
5. The Special Marriage Act, 1954
6. Supriyo @Supriyo Chakraborty vs. Union of India Writ Petition (Civil) No. 1011 of 2022
7. Navtej Singh Johar vs. Union of India (2018) AIR 2018 SUPREME COURT 4321
8. Justice K.S. Puttaswamy (Retd) vs Union of India AIR 2018 SC (SUPP) 1841
9. https://thebasicstructureconlaw.wordpress.com/2023/10/18/explained-majorityjudgment-in-the-marriage-equality-case/
10. https://articles.manupatra.com/article-details/NAVIGATING-THE-PATH-TO-

EQUALITY-THE-LANDMARK-CASE-OF-SUPRIYO-V-UNION-OF-INDIA-AND-

THE-FUTURE-OF-LGBTQIA_Plus_-RIGHTS

REFERENCES

[1] Navtej Singh Johar vs. Union of India (2018) AIR 2018 SUPREME COURT 4321

[2] Justice K.S. Puttaswamy (Retd) vs Union of India AIR 2018 SC (SUPP) 1841

[3] Swapnil Tripathi, “Explained: Majority Judgement in the Marriage Equality Case” The ‘Basic’ Structure Summarize, Simplify, explain! <https://thebasicstructureconlaw.wordpress.com/2023/10/18/explained-majorityjudgment-in-the-marriage-equality-case/> accessed on 28-01-2025

[4] Ashish Rawat, “Navigating the path to equality: the landmark case of Supriyo v. Union of India and the future of LGBQTIA+ rights” (July 02,2024) Manupatra Articles < https://articles.manupatra.com/article-

details/NAVIGATING-THE-PATH-TO-EQUALITY-THE-LANDMARK-CASE-OF-SUPRIYO-V-UNION-OFINDIA-AND-THE-FUTURE-OF-LGBTQIA_Plus_-RIGHTS> accessed on 28-01-2025