Case Note: Supriyo @ Supriya Chakraborty & Anr. v. Union of India (2023 INSC 920)

Findings of the court

Dr. D.Y. Chandrachud, C.J.I.

(i) The following were conclusions of this court:

a. This Court was vested with the authority to hear this case. Under Article 32, this Court had the power to issue directions, orders, or writs for the enforcement of the rights in Part III.

b. Queerness is a natural phenomenon known to India since ancient times. It was not urban or elite. c. There was no universal conception of the institution of marriage, nor is it static. under Articles 245 and 246 of the Constitution read with Entry 5 of List III to the Seventh Schedule, it lies within the domain of Parliament and the state legislatures to enact laws recognizing and regulating queer marriage d. Marriage has attained significance as a legal institution largely because of Regulation by the state. By recognizing a relationship in the form of marriage, the state grants material benefits exclusive to marriage e. The State has an interest in regulating the intimate zone to democratize personal relationship f. The issue of whether the Constitution recognizes the right to marry did not arise before this Court in Justice KS Puttaswamy, Shafin Jahan, and Shakti Vahini

g. The Constitution does not expressly recognize a fundamental right to marry. An institution cannot be elevated to the realm of a fundamental right based on the content accorded to it by law. However, several facets of the marital relationship are reflections of constitutional values including the right to human dignity and the right to life and personal liberty

h. This Court could not either strike down the constitutional validity of SMA or read words into the SMA because of its institutional limitations. This Court could not read words into the provisions of the SMA and provisions of other allied laws such as the ISA and the HSA because that would amount to judicial legislation. The Court in the exercise of the power of judicial review must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain

i. The freedom of all persons including queer couples to enter into a union is protected by Part III of the Constitution. The failure of the state to recognise the bouquet of entitlements which flow from a union would result in a disparate impact on queer couples who cannot marry under the current legal regime. The state has an obligation to recognize such unions and grant them benefit under law

j. In Article 15(1), the word sex must be read to include sexual orientation not only because of the causal relationship between homophobia and sexism but also because the word sex is used as a marker of identity which cannot be read independent of the social and historical context

k. The right to enter into a union could not be restricted based on sexual orientation. Such a restriction will be violative of Article 15. Thus, this freedom was available to all persons regardless of gender identity or sexual orientation

l. The decisions in Navtej and Justice KS Puttaswamy recognize the right of queer couples to exercise the choice to enter into a union. This relationship is protected from external threat. Discrimination on the basis of sexual orientation will violate Article 15

m. Transgender persons in heterosexual relationships have the right to marry under existing law including personal laws which regulate marriage

n. Intersex persons who identify as either male or female have the right to marry under existing law including personal laws which regulate marriage

o. The state must enable the LGBTQ community to exercise its rights under the Constitution. Queer persons have the right to freedom from coercion from their natal families, agencies of the state including the police, and other persons

p. Unmarried couples (including queer couples) can jointly adopt a child. Regulation 5(3) of the Adoption Regulations was ultra vires the JJ Act, Articles 14, and 15. Regulation 5(3) was read down to exclude the word marital. The reference to a couple in Regulation 5 includes both married and unmarried couples as well as queer couples. The principle in Regulation 5(2)(a) that the consent of spouses in a marriage must be obtained if they wish to adopt a child together was equally applicable to unmarried couples who seek to jointly adopt a child. However, while framing Regulations, the state may impose conditions which will subserve the best interest and welfare of the child in terms of the exposition in the judgment

q. The CARA Circular disproportionately impacts the queer community and was violative of Article 15 r. The Union Government, State Governments, and Governments of Union Territories shall not discriminate against the freedom of queer persons to enter into union with benefits under law and s. This court record the assurance of the Solicitor General that the Union Government will constitute a Committee chaired by the Cabinet Secretary for the purpose of defining and elucidating the scope of the entitlements of queer couples who were in unions. The Committee shall include experts with domain knowledge and experience in dealing with the social, psychological, and emotional needs of persons belonging to the queer community as well as members of the queer community. The Committee shall before finalizing its decisions conduct wide stakeholder consultation amongst persons belonging to the queer community, including persons belonging to marginalized groups and with the governments of the States and Union Territories The Committee shall in terms of the exposition in this judgment consider the following: (1). Enabling partners in a queer relationship (i) to be treated as a part of the same family for the purposes of a ration card; and (ii) to have the facility of a joint bank account with the option to name the partner as a nominee, in case of death (2). In terms of the decision in Common Cause v. Union of India, as modified by Common Cause v. Union of India, medical practitioners have a duty to consult family or next of kin or next friend, in the event patients who are terminally ill have not executed an Advance Directive. Parties in a union may be considered family for this purpose iii. Jail visitation rights and the right to access the body of the deceased partner and arrange the last rites and iv. Legal consequences such as succession rights, maintenance, financial benefits such as under the Income Tax Act 1961, rights flowing from employment such as gratuity and family pension and insurance.

The report of the Committee chaired by the Cabinet Secretary shall be implemented at the administrative level by the Union Government and the governments of the States and Union Territories. [340]

IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) No. 1011 of 2022, Writ Petition (Civil) No. 93 of 2023,

Decided On: 17.10.2023

Supriyo and Ors. Vs. Union of India (UOI)

Hon'ble Judges/Coram: Dr. D.Y. Chandrachud, C.J.I., Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli and Pamidighantam Sri Narasimha, JJ.

Citation: MANU/SC/1155/2023,2023/INSC/920.

Sanjay Kishan Kaul, J.

(i) The SMA postulates a special form of marriage available to any person in India irrespective of faith. Therefore, the SMA provides a secular framework for solemnization and registration of marriage. Here, this court disagree with my brother Justice Ravindra Bhat, that the sole intention of the SMA was to enable marriage of heterosexual couples exclusively. The stated objective of the SMA was not to regulate marriages on the basis of sexual orientation. This could not be so as it would amount to conflating the differentia with the object of the statute. Although substantive provisions of the SMA confer benefits only on heterosexual relationships, this does not automatically reflect the object of the statute. For as this court were all aware, this court often act in ways that do not necessarily correspond to our intent. Therefore, this could not look at singular provisions to determine substantive intent of the statute. Doing so would be missing the wood for the trees. [356]

(ii) If the intent of the SMA was to facilitate inter-faith marriages, then there would be no rational nexus with the classification it makes, i.e., excluding non- heterosexual relationships. [357] (iii) Legal recognition of non-heterosexual unions represents a step forward towards marriage equality. At the same time, marriage is not an end in itself. Our Constitution contemplates a holistic understanding of equality, which applies to all spheres of life. The practice of equality necessitates acceptance and protection of individual choices. The capacity of non-heterosexual couples for love, commitment and responsibility is no less worthy of regard than heterosexual couples. Let preserve this autonomy, so long as it does not infringe on the rights of others. After all, it's my life. [375]

S. Ravindra Bhat, J.

(i) The conclusions and directions of this court as follows:

(a). There is no unqualified right to marriage except that recognised by statute including space left by custom.

(b). An entitlement to legal recognition of the right to union - akin to marriage or civil union, or conferring legal status upon the parties to the relationship can be only through enacted law. A sequitur of this is that the court cannot enjoin or direct the creation of such regulatory framework resulting in legal status.

(c). The finding in (i) and (ii) should not be read as to preclude queer persons from celebrating their commitment to each other, or relationship, in whichever way they wish, within the social realm.

(d). Previous judgments of this Court have established that queer and LGBTQ+ couples too have the right to union or relationship be it mental, emotional or sexual flowing from the right to privacy, right to choice, and autonomy. This, however, did not extend to a right to claim entitlement to any legal status for the said union or relationship.

(e). The challenge to the SMA on the ground of under classification was not made out. Further, the Petitioner's prayer to read various provisions in a gender neutral manner so as to enable same-sex marriage, was unsustainable.

(f). Equality and non-discrimination are basic foundational rights. The indirect discriminatory impacts in relation to earned or compensatory benefits, or social welfare entitlements for which marital status is a relevant eligibility factor, for queer couples who in their exercise of choice form relationships, have to be suitably redressed and removed by the State. These measures need to be taken with expedition because inaction will result in injustice and unfairness with regard to the enjoyment of such benefits, available to all citizens who are entitled and covered by such laws, Regulations or schemes. This Court could not within the judicial framework engage in this complex task; the State had to study the impact of these policies, and entitlements.

(g). Consistent with the statement made before this Court during the course of proceedings, the Union shall set up a high-powered committee chaired by the Union Cabinet Secretary, to undertake a comprehensive examination of all relevant factors, especially including those outlined above. In the conduct of such exercise, the concerned representatives of all stakeholders, and views of all States and Union Territories shall be taken into account. (h). The discussion on discriminatory impacts was in the context of the effects of the existing regimes on queer couples. While a heterosexual couple's right to live together is not contested, the logic of the discriminatory impact faced by queer couples cohabiting together, would definitionally, however, not apply to them.

(i). Transgender persons in heterosexual relationships have the freedom and entitlement to marry under the existing statutory provisions.

(j). Regulation 5(3) of the CARA Regulations could not be held void on the grounds urged. At the same time, this Court was of the considered opinion that CARA and the Central Government should appropriately consider the realities of de facto families, where single individuals were permitted to adopt and thereafter start living in a non-matrimonial relationship. In an unforeseen eventuality, the adopted child in question, could face exclusion from the benefits otherwise available to adopted children of married couples. This aspect needs further consideration, for which the court was not the appropriate forum.

(k). Furthermore, the State shall ensure consistent with the previous judgment of this Court in K.S. Puttaswamy, Navtej Johar, Shakti Vahini and Shafin Jahan that the choice exercised by queer and LGBTQ couples to cohabit was not interfered with and they do no face any threat of violence or coercion. All necessary steps and measures in this regard shall be taken. The Respondents shall take suitable steps to ensure that queer couples and transgender persons were not subjected to any involuntary medical or surgical treatment.

(l). The directions in relation to transgender persons were to be read as part of and not in any manner whittling down the directions in NALSA so far as they apply to transgender persons.

(m). This Court was alive to the feelings of being left out, experienced by the queer community; however, addressing their concerns would require a comprehensive study of its implications involving a multidisciplinary approach and polycentric resolution, for which the court is not an appropriate forum to provide suitable remedies. [524]

Detail discussion

Issue: Whether the Special Marriage Act, 1954, excluding same-sex couples from marriage, violates Articles 14 (equality) and 21 (right to life) of the Indian Constitution.

Judgment:

• Majority opinion (Justices Bhat and Kohli):
  • Upheld the validity of the Special Marriage Act, 1954.
  • Recognized the fundamental right to choose a life partner.
  • Distinguished between the right to marry and the right to a partnership with legal recognition and benefits.
  • Held that the institution of marriage, with its historical and social underpinnings, is not yet ready to encompass same-sex unions.
  • Left open the possibility of future recognition of same-sex relationships through civil unions or other forms of legal partnership.
• Concurring opinion (Justice Narasimha):
  • Agreed with the majority on upholding the Act but emphasized the need for a legislative framework to address the legal vacuum for same-sex couples.
• Dissenting opinion (Chief Justice Chandrachud):
  • Advocated for recognizing the right to same-sex marriage, arguing that the exclusion violates Articles 14 and 21.
  • Emphasized the evolving definition of marriage and international human rights obligations.

Implications:

• Mixed reactions: LGBTQ+ community and legal experts criticize the non-recognition of same-sex marriage, while supporters commend the Court for upholding traditional marriage.
• Legal ambiguity: Judgment leaves the question of civil unions and future legal recognition of same-sex relationships open.
• Legislative pressure: Judgment may spur legislative action to address the legal vacuum for same-sex couples.
• Social discourse: Case reignites public debate on LGBTQ+ rights and the definition of marriage in India.

Further Questions:

• Criteria and timeline for potential recognition of civil unions.
• Justification for the distinction between marriage and other forms of legal partnership.
• Impact on ongoing legal challenges and future legislative initiatives.

Conclusion:

The Supriyo judgment is a landmark case in the legal fight for same-sex marriage in India. While falling short of recognizing same-sex marriage, it triggers further legal and social discourse, paving the way for potential future legal progress towards inclusivity and equality for LGBTQ+ individuals.

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