Case Analysis: Supriyo @ Supriya Chakraborty & Anr. v. Union of India, (2023) | Same-Sex Marriages in India

In the case of Supriyo @ Supriya Chakraborty & Anr. v. Union of India, the Hon'ble Supreme Court ruled that the right to marriage is a statutory right, and to the extent it is demonstrable, a right flowing from a legally enforceable customary practice. 

Case Title: Supriyo @ Supriya Chakraborty & Anr. v. Union of India
Court: Supreme Court of India
Citation: Writ Petition (Civil) No. 1011 of 2022
Judges: CJI D.Y. Chandrachud, S.K. Kaul (J), S.R. Bhat (J), Hima Koli (J) and P.S. Narasimha (J) 
Date of Judgment: 17th October, 2023

Facts

Same-sex couples filed two petitions on the 14th of November 2022 whereby they were seeking legal recognition of same-sex marriages in India. These petitions mentioned certain provisions and their subsequent validity as present in the Special Marriage Act, 1954. The name of the persons who filed the two petitions was: Supriyo Chakraborty and Abhay Dang (the first petition) and the second petition by Parth Phiroze Merhotra and Uday Raj Anand.

To understand this case, it is imperative to have a background check of the Supreme Court’s judgment in the Navtej Singh Johar and Ors. v. Union of India (AIR 2018 SC 4321) case.

Section 377 of the Indian Penal Code, 1860 had been declared to be unconstitutional in the Navtej Singh Johar case. But this unconstitutionality had been declared only in regards to the unions that were made between two people of the same sex with their consent. The provision - Section 377 previously criminalised intercourse between two persons of the same sex (carnal intercourse against nature’s order), and the same was made unconstitutional by the Supreme Court thereby giving priority to a person’s right. The fundamental rights guaranteed by Articles 14, Article 15 and Article 19 of the Constitution of India were being violated by Section 377 alone. Thus this judgment was the first one to pave the way for a safe future for the queer community.

However, ever since then, there have been numerous petitions filed for several other rights that must be guaranteed to the queer community. One of such major rights for which multiple petitions have been filed in several courts is the ‘right to marry’ to be granted to the queer community so that people belonging to the same sex are allowed to legally get married.

The main motto behind the petitions has been to end the ‘discrimination against the queer community’ which is practised by keeping them separate from society by not giving them the basic rights which are otherwise available to the other public at large. It was also being said that since the court has already recognised the right to have intercourse and relationships between people of the same sex being non-heterosexual relationships, it was now necessary to even grant them the right to marry to let the essence of that freedom seep in.

The present case at hand was also regarding the same issue. The Supreme Court took suo motu cognisance of the said matter by stating the ardent need to address the violence and discrimination being faced by such people and the need to eliminate it once and for all. The court clubbed a total of twenty petitions which had been filed in different High Courts for seeking the same relief. Since the case was of utmost importance, a five-judge Constitution bench was placed to hear the said matter with the main aim of analysing whether same-sex marriages could be allowed in India.

Issue

The main issue at hand in the said case can be understood from above as explained, that is:

• Whether the denial of a fundamental right to marry for queer couples amounts to a violation of their right to privacy and dignity?

Arguments

Before moving ahead to what the apex court’s stance in this matter was, let us analyse the arguments posed by the parties to the said matter to decipher the court’s judgement more comprehensively:

Arguments presented by the Petitioners

The following is a gist of the comprehensive arguments made by the petitioners and various senior learned counsels. The brief of arguments is as follows:

The petitioners argued that since the Supreme Court had already approved the recognition of the right to dignity, equality and privacy as part of the fundamental rights which must be guaranteed to the LGBTQIA+ persons, then providing and guaranteeing them the right to marry was only a subsequent move of the same and not at all a new debate which should be started. As per the petitioners, the following are a few of the reasons for which the right to marry must be granted to LGBTQIA+ persons:

a. Right to liberty and freedom as enshrined under Articles 19 and Article 21 of the Constitution guarantee persons the right to marry persons of their choice and so this right should be given to LGBTQIA+ persons also.

b. The Special Marriage Act, 1954 violates these very rights and thus is unconstitutional as it denies marriage between people of the same sex—the same amounts to discrimination against a group of people whose sexual orientation is different.

c. There lies no apparent ‘legitimate state interest’ which can be said to have been safeguarded by way of denying the right to marry to persons of the same sex.

d. Allowing them this right is in a form, a way of upholding the nation’s ‘constitutional morality’. This can be said as it is stated as a part of constitutional morality that our society must be pluralistic and inclusive. Since the Constitution is a living document, necessary changes must be made to it at every interval of time to keep it updated with the recent happenings and changes in society.

e. It was also mentioned that if the Special Marriages Act, 1954 is read in consonance with the Indian Constitution, it would be inferred that same-sex marriage are rather allowed by it already. The same can be proved as—the meaning of man and woman as per S.2(b) of the Act includes any person.

Arguments presented by the Respondents 

The arguments raised by the respondents to counter the petitioners have been made concise to understand their gist and the same are provided in brief below:

a. Special Marriage Act, 1954 is not an independent law but rather a species of the general marriage laws. It is imperative to note that ‘procreation’ is a major aspect of marriage and the same being impossible in a non-heterosexual union, it cannot be regarded as a marriage in the first place.

b. The unconstitutionality of the Special Marriage Act, 1954 cannot come into question at all since at the time of the making of this law, there was no existence of non-heterosexual union and so it cannot be stated now that the law sought to exclude something which was not even present at the time it was formulated.

c. It is not possible for courts to venture into the arena of policy-making and thereby order the right to marry as applicable to non-heterosexual couples. This would firstly lead to the court making law and secondly, even if it allowed, the same would result in the redesigning of several laws.

d. Another important argument relates to whether the right to marry is impliedly guaranteed by the constitution as it might be true that Article 19 contains the right to a person’s sexuality but no Article under the fundamental rights of the citizens as present in the constitution guarantees the right to marry or form unions.

e. It was also argued that the State is not under any obligation to recognize every type of relationship and so it only gives regard to those relationships whereby it has its interest as well. Heterosexual relationships can be termed important for the sustenance of society.

Judgment

In the above case, it was held by the five-judge bench, unanimously that the right to marry is not a fundamental right in itself and neither does it come under the umbrella protection of any of the other basic rights. The court also used the distinction that can be drawn between the two aspects- choosing a partner and getting married- to accentuate its stance.

The court emphasized that while it had decided earlier when the question was about having the right to choose a partner when it comes to the right to marry, it is only up to the State to make a law approving of it. The court also stated that all the rights discussed by the petitioners to be a result of marriage are benefits that the State provides and not something that marriage in itself contains.

The court also emphasized that it is important to note that just because the right to marry is not provided to LGBTQIA+ people, it does not mean that they are not being given the ability to practice their right to privacy, choice and autonomy as these are the facets which were kept in mind earlier while scrapping off Section 377 of the IPC.

By a verdict of 3:2, it was held by the court that after a thorough analysis of Articles 19, 21 and 25, it can be concluded that the State is under no positive obligation to recognize every sort of civil union as a marriage. Thus, the terms of the judgement disposed of the petitions in this case, and the right to marry for LGBTQIA+ people was thereby not granted.

Click Here to Read the Official Judgment

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