The case, Supriya Chakraborty & Anr. v. Union of India, was a historic attempt to secure marital rights for LGBTQAI+ couples in India. Delivered on 17th October 2023, a five-judge bench of the Supreme Court of India addressed the contentious issue of same-sex marriage, wherein the petitioners argued that certain provisions of the Special Marriage Act, 1954[1], and the Foreign Marriage Act, 1969[2], are unconstitutional and violate the fundamental rights, particularly Article 14[3],15[4],19[5], and 21[6] Of the Indian Constitution, same-sex couples, and the LGBTQAI+ community. The case is one of the notable precedents to redefine the scope of constitutional rights of dignity, equality, and non-discrimination. However, it highlights the limitations of transformative constitutionalism, where the judiciary takes a restrained approach, considering the hinge debate over minorities and the majority in society. While the judgment acknowledged the rights of forming unions and associations to the LGBTQAI+ community, it refused recognition of their marital status. This reflected as a disconnect between constitutional rights and institutional conservatism. Let’s read about this case in detail to understand that political will and civic engagement are equally vital.
BEYOND THE VOWS: WHAT DID THE PETITIONERS WANT?
The present case involves various petitions clubbed together seeking reinterpretation of Marriage laws in a gender-neutral manner. The petitioners, Supriyo Chakraborty and Supriya Chakraborty (a same-sex couple) and a group of LGBTQIA+ individuals and couples, sought recognition of same-sex marriages under secular laws- the Special Marriage Act, 1954, which presumes marriage as an institution between a man and a woman only. Petitioners claimed that this led to an exclusion of same- sex couples from the ambit of the act, denying not just their right to marry, but also the associated rights with marital status, such as adoption, inheritance rights, and insurance.
Petitioners argued that the language of the Special Marriage Act, 1954[7] involves marriage between a husband and a wife, excluding same-sex couples from its scope. Such exclusion violates their fundamental rights to equality, non-discrimination, life, and liberty. They contended that recognition of only heterosexual couples is arbitrary, irrational, and strips away their most basic rights.
Whereas the respondents, the Union of India, emphasised the separation of powers to illustrate that such recognition falls within a legislative domain and that the transformative power rests with the legislature, not the judiciary. Respondents argued that civil unions are a policy matter and beyond the court’s powers. They further elucidated that the scope of SMA,1954, and FMA was to recognise inter-caste and inter-religious marriages between heterosexual couples. Interpreting these acts to include same-sex couples would amount to rewriting the law. Critically examining the past case of Navtej Singh Tomar V. U.O.I.[8]The respondents highlighted decriminalisation of same-sex couples, concluding that it doesn’t amount to violating their right to dignity, ensuring liberty and autonomy. Finally, respondents stated that marriage, as a social institution, is tied to procreation and societal stability, which regulates family structures.
RIGHTS, REWRITTEN OR DENIED? – KEY LEGAL CROSSROADS
Following the landmark case of Navtej Singh Tomar v. U.O.I.[9] this case tested whether decriminalisation of same-sex couples could be shaped into recognising their dignity and equal rights to the extent of recognising same-sex marriages, including association rights of adoption, inheritance, and others. The major issues listed below tested the bounds of constitutional morality and the extent to which the Supreme Court of India affirms positive rights.
- Do same-sex couples have the fundamental right to marry under articles 14, 15, 19, and 21?
- Whether the Special Marriage Act, 1954, and the Foreign Marriage Act, 1969, are held unconstitutional, insofar as they violate fundamental rights of LGBTQAI+ couples?
- Whether the Special Marriage Act, 1954, and the Foreign Marriage Act, 1969, should be read and interpreted as gender-neutral acts to recognise marriages?
- Can the judiciary intervene in the legislative function and be empowered to recognise same-sex marriages?
- Whether the exclusion of same- sex couples from marital status amount to the denial of full citizenship and dignity?
A BENCH DIVIDED: LOVE, LAW & LIMITS
A five-judge constitutional bench, including CJI C.Y. Chandrachud, Justice Bhat, Justice Kohli, Justice Narasimha, and Justice Kaul, critically examined the scope of fundamental rights. Justice Bhat, Kohli and Narasimha striking the petitions, formed the majority opinion and held that same-sex or queer couples have a right to form relationships and live with dignity. Still, the state or the constitution isn’t bound to recognise their marriage under any legislation; they further emphasised the fact that marriage is a policy of the legislature and is a part of the legislative construct. The judiciary cannot extend its role or overreach its scope to provide such recognition. The majority, hence, refrained from using the interpretative tool of the courts in the guise of rewriting law. They held that the right to marry isn’t a fundamental right, and the SMA, FMA are made to recognise heterosexual couples only.
However, the judgment struck down Regulation 5(3) of the Adoption Regulation Act, 2017[10], which gives wider inclusivity to same-sex couples in adoption rights, if they comply with other related provisions. Regulation 5 (3) of the Adoption Regulation Act, 2017 obligates a stable marital status for at least 2 years to adopt a child.
On the other hand, the minority opinion by the then-Chief Justice, CJI D.Y. Chandrachud, supported by Justice Kaul, advocated for giving equal rights to same-sex couples, widening the scope of fundamental rights, including a dignified life, right to marry, and other associated rights in a marriage. They opined that the state should recognise same-sex marriages as it is an important aspect of life, protected under Article 21(Right to Life)[11]. They were inclined towards the reinterpretation of the SMA, transgressing into a gender-neutral legislation.
TICKING BOXES, NOT RIGHTS: THE ILLUSION OF INCLUSION
The status quo remains. There is no legal recognition of same-sex marriages; however, the judgment impacted the social and legal arenas, marking a change, though a little one. While the judgement failed to recognise the right to marry as a fundamental right, it did emphasise that same-sex couples have the right to form relationships, unions, and cohabitation without any legal recognition. Also, no legal recognition doesn’t extend to having no adoption rights, as the judgment struck down Regulation 5 (3) of the Adoption Regulation Act, 2017[12]. The dissenting opinion by Chief Justice Chandrachud reaffirms open doors for reformation, considering the plight and hardships of the LGBTQAI+ community. Between legal battles, the general public also gets influenced by the sayings of the eminent judges of the Supreme Court, which entails a sense of legal awareness, sensitivity, and inclusivity. This sets the ground for future legislative reforms, a progressive outcome, and a transformed society. At the same time, the judgment reflected a balance between the two classes of society, i.e., the majority and minority. A society needs to be stabilised for a major change for the best interests of both groups. For now, the judgment provides a reaffirmation, if not, absolute denial, to the rights of the same- sex couples.
UNFINISHED REVOLUTION: PRECEDENTS THAT SHAPED THE NARRATIVE
Precedent analysis for cases involving the debate over public discourse of the LGBTQAI+ community is listed as follows,
- Navtej Singh Johar v. Union of India[13]– Struck down Section 377 that criminalised consensual homosexual acts, widening the scope of Constitutional Morality.
- Justice K.S. Puttaswamy (Retd.) v. Union of India[14]– The judgement established the right to Privacy as an essential part of life and stated that sexual orientation is a crucial part of identity.
- Shafin Jahan v. Asokan K.M., (2018)[15]– The Supreme Court held that adults have the right to choose their partners, validating the LGBTQAI+ community in society.
The present case adds to the list of awarding minimal rights but no legal recognition, the community still strives for a reform that could legally enforce their rights to marry, adopt, and inherit like any other heterosexual couple. It lethally balances constitutional guarantees with social realities in our country. The temporary relief in the name of progressiveness is sweet poison for the whole community. If someone critically looks behind the veil, the true sense of judicial ignorance and legislative failure instils the judgment as a compromise, rather than an incremental approach to guaranteeing tangible rights, immediate relief, and civil reform.
JUSTICE PROMISED IS JUSTICE POSTPONED.
The judgement serves as a landmark yet a complex decision which recognises civil unions, struck down discriminatory adoption norms, however, fails to recognise same-sex marriages. It is seen as a pivotal movement for the LGBTQAI+ community in India. It reemphasises institutional deference to the legislature, but also progressively implements reform, affirming a foundational step towards equality and justice for all. As CJI Chandrachud stated, “Queerness is neither urban nor elitist, it is as Indian as any other identity.” The battle for recognition of same-sex marriage continues, but this judgment helped widen the scope for change and legislative reform.
Author(s) Name: Chestha Khurana (Institute of Law, Nirma University)
References:
[1] The Special Marriage Act 1954 (No 43 of 1954) (India)
[2] The Foreign Marriage Act 1969 (No 33 of 1969) (India)
[3] Constitution of India 1950, art 14
[4] Constitution of India 1950, art 15
[5] Constitution of India 1950, art 19
[6] Constitution of India 1950, art 21
[7] The Special Marriage Act 1954 (No 43 of 1954) (India)
[8] Navtej Singh Johar v Union of India AIR 2018 SC 4321; (2018) 10 SCC 1.
[9] Navtej Singh Johar v Union of India AIR 2018 SC 4321; (2018) 10 SCC 1.
[10] Adoption Regulations 2017, reg 5(3), Gazette of India pt III sec 4, 17 January 2017 (India)
[11] Constitution of India 1950, art 21
[12] Adoption Regulations 2017, reg 5(3), Gazette of India pt III sec 4, 17 January 2017 (India)
[13] Navtej Singh Johar v Union of India AIR 2018 SC 4321; (2018) 10 SCC 1.
[14] Justice K S Puttaswamy (Retd) v Union of India (2017) 10 SCC 1.
[15] Shafin Jahan v Asokan K M (2018)16 SCC 368.
