The landmark case Supriyo Chakraborty & Anr. v. Union of India reshaped discussions on constitutional rights and marriage in India. While it denied a fundamental right to marry, the judgment acknowledged systemic discrimination against the LGBTIQ+ community. Also, the Supreme Court of India recently , on 9th of January,2025 rejected review petitions that challenged its previous ruling, which did not legally recognize queer marriages under Indian law.
NEW DELHI: Recently , a bench consisting of Justices BR Gavai, Suryakant, BV Nagarathna, PS Narasimha, and Dipankar Datta reviewed the petitions challenging the previous judgement , in the case of Supriyo Chakraborty & Anr. v. Union of India, which refused to legalise the same sex marriages in India in chambers, holding no public court hearing for the same and rejected review petitions that challenged its previous ruling, which did not legally recognize queer marriages under Indian law.
The case of Supriyo Chakraborty & Anr. v. Union of India brought a key question to light:
Whether the Indian Constitution guarantees a fundamental right to marry?
The unanimous conclusion was that such a right is not explicitly guaranteed. While this was a disappointment for many, the judgment still holds several positive aspects, particularly its recognition of the systemic discrimination faced by the LGBTIQ+ community.
Both the majority and minority opinions in the judgment acknowledged the existence of a right to same sex marriages , also referred to as a “right to relationship.” This recognition highlights the importance of personal choices in forming meaningful relationships.
The five-judge Bench had differing opinions on the nature and scope of the obligations that stem from such a right.
By not limiting intimate associations strictly to the framework of marriage, the judgment encourages broader interpretations of relationships and family structures. This could pave the way for legal recognition of diverse forms of partnerships and communities, fostering inclusivity and acceptance. However, the lack of consensus among the judges on the precise contours of the right to intimate association leaves room for further debate and development in this area of law.
WHAT WAS THE JUDGEMENT OF SUPRIYO CHAKRABORTY AND ANR. V. UNION OF INDIA?
On October 17, 2023, a five-judge Bench of the Supreme Court of India delivered its verdict on petitions seeking marriage equality for LGBTQIA+ individuals. The Bench unanimously held that there is no fundamental right to marry under the Constitution, and it also ruled that marriages between queer individuals cannot be recognized under the Special Marriage Act, 1954 (SMA). While this decision disappointed many, it brought clarity to the legal framework concerning marriage rights.
The judges unanimously agreed that transgender individuals in heterosexual relationships have the right to marry under the existing legal framework. However, in a 3:2 majority decision, the Bench held that same-sex couples do not have the right to form civil unions or adopt children.
The judgement comprised of Three Major Issues:
1.Do members of the LGBTQIA+ community have a right to marriage?
2. If members of the LGBTQIA+ community have a right to marry, can the SC make a declaration to this effect?
3.Does the non-inclusion of LGBTQIA+ marriages under the Special Marriage Act, 1954, amount to discrimination under Article 14?
Chief Justice of India (CJI) D.Y. Chandrachud strongly believed that the Supreme Court is the right forum to address this issue. He emphasized the importance of judicial review and stated that,
“The Court has the authority to decide whether the fundamental rights of queer individuals are being violated. As he explained, “the Constitution does not expressly recognise a fundamental right to marry.”
The Chief Justice pointed out that laws governing marriage are created by Parliament and state legislatures. He added that state legislatures, even if they have not yet created laws related to marriage, are “obligated to create an institution because of the positive postulate encompassed in the right to marry.” This highlights the responsibility of lawmakers to ensure inclusivity in marriage laws.
Union Government’s Arguments and the Doctrine of Separation of Powers
During the hearings in April-May 2023, the Union government argued that the Supreme Court’s intervention in recognizing marriage rights for queer individuals would violate the doctrine of separation of powers, which ensures that the Legislature, Executive, and Judiciary perform distinct functions.
However, CJI Chandrachud clarified that judicial review is a fundamental part of this doctrine and that the Court is well within its powers to examine whether constitutional rights are being infringed.
Petitioners’ Reliance on Previous Judgments
The petitioners referred to two landmark cases, Shafin Jahan v. Asokan K.M. (2018) and Shakti Vahini v. Union of India (2018), to argue that marriage is a fundamental right.
Both cases involved inter-faith and inter-caste marriages between a biological man and a biological woman. In Shafin Jahan, the Court ruled that
“choice of a partner, whether within or outside of marriage, lies in the exclusive domain of the individual, and that the State cannot dictate or limit the freedom to choose a partner.”
Perspectives of the Judges and Why the Supreme Court declined to recognise it?
The judges gave a majority and a minority view in he judgement, it comprises of both the views of the judges which are as follows:
Justice S.R. Bhat agreed with the Former Chief Justice Justice DY Chandrachud , stating that
“the constitution does not expressly recognise a right to marry.”
He further elaborated,
“Marriage exists “independently of the state,” meaning it is rooted in society rather than law and the state can “utilise or accommodate” marriage as an institution but does not have the authority to abolish it.“
Justice Bhat wrote that the,
“publicly created and administered institution” of marriage cannot become a demand to create a legally recognised institution and status. As the right to marry is a “personal preference” which “confers social status”, it is not an “enforceable right, which the courts can compel the state or governance institutions to provide.”
Justice Narasimha added that marriage is a fundamental freedom, not a right.
The next question before the bench was ,
Do Queer Couples Have a Right to Enter into a “Civil Union”?
In a 3:2 split decision, the Supreme Court of India ruled that queer couples do not have a constitutional right to enter into a civil union. Chief Justice of India (CJI) D.Y. Chandrachud and Justice S.K. Kaul dissented, supporting the right to civil unions for queer couples, while Justices S.R. Bhat, Hima Kohli, and P.S. Narasimha formed the majority and ruled against this recognition.
Minority View: CJI Chandrachud and Justice Kaul
CJI Chandrachud held that queer couples have the right to enter into civil unions, stating that “the right to enter into a union includes the right to associate with a partner of one’s choice.” He emphasized that forming “intimate associations” is vital for the “self-development” of an individual. He further argued that “for the full enjoyment of such relationships, it is necessary that the State accord recognition to such relationships.”
According to him, this right is protected under Article 19 of the Constitution, which guarantees the freedom of speech and expression and the freedom to form associations. This principle was previously recognized in National Legal Services Authority (Nalsa) v. Union Of India (2014) and Navtej Singh Johar v. Union of India (2018).
CJI Chandrachud also held that
“Article 15, which prohibits discrimination on the grounds of “sex,” includes “sexual orientation, and that the Union government is obligated to recognize queer relationships and extend all benefits available to heterosexual couples in marital relationships.”
Justice S.K. Kaul supported this view, adding that
“The right to form a “civil union” is a part of Article 19 (freedom of association) and Article 21 (right to personal liberty). He stated that “principles of equality prescribe that the right to form this union is available to all, regardless of sexual orientation and gender.”
Majority View: Justices Bhat, Narasimha, and Kohli
Justice S.R. Bhat, leading the majority opinion, agreed with CJI Chandrachud that
“all queer persons have the right to relationship and choice of partner, cohabit and live together, as an integral part of choice.”
This right is already protected under Article 21 of the Constitution. However, he disagreed with the idea of creating a new legal framework for civil unions. He argued that,
“Ordering a social institution” like civil unions would require an entirely new legal system with rules for registration, eligibility, divorce, alimony, and other related rights and obligations.The state is not obligated to provide this “bouquet of entitlements.”
Justice Narasimha agreed with Justice Bhat and added that mandating the state to recognize civil unions would breach the doctrine of separation of powers, which ensures that legislative, executive, and judicial functions remain distinct.
Does the Special Marriage Act Violate the Right to Equality?
The petitioners argued that the Special Marriage Act (SMA), 1954, violates the right to equality as it does not recognize non-heteronormative marriages. They claimed this exclusion discriminates between heterosexual and non-heterosexual persons, thereby violating Article 14 of the Constitution.
Justice D.Y. Chandrachud’s Opinion
CJI Chandrachud addressed the issue by referring to Section 4 of the SMA, which the petitioners called the “root of all problems.” He stated that,
“Declaring this provision unconstitutional would harm the purpose of the SMA, which was a “progressive legislation” aimed at supporting interfaith and inter-caste marriages. SMA was created to promote inclusivity and remove social barriers.”
Declaring it “void,” he said, would push India backward. He stated,
“Such a judicial verdict would not only have the effect of taking the nation back to the era when it was clothed in social inequality and religious intolerance but would also push the courts to choose between eradicating one form of discrimination and prejudice at the cost of permitting another.”
Justice S.K. Kaul’s Opinion
Justice Kaul disagreed with the Chief Justice and held that the ,
“SMA discriminates against queer individuals, thus violating Article 14. He referred to the two-pronged test for determining whether a law violates the right to equality. This test requires:
- A clear classification between different groups.
- A reasonable connection (nexus) between this classification and the purpose of the law.”
Justice Kaul found that the SMA makes a clear distinction between heterosexual and non-heterosexual individuals but fails to provide a reasonable justification for this distinction. He argued that the SMA’s intent to facilitate interfaith marriages does not justify excluding non-heterosexual couples. He stated there was no logical “nexus” between the SMA’s objective and the exclusion of queer relationships.
Justice S.R. Bhat’s Opinion
Justice Bhat took a different approach, relying on past judgments. He noted that a ,
“Classification violates Article 14 only when there is no “conceivable reasonable basis for the differentiation.” He explained that the differentiation must align with the objectives of the law creating it.“
Justice Bhat emphasized that the sole purpose of the SMA was to “facilitate marriage between persons professing different faiths.” He noted that at,
“the time of its enactment, same-sex relationships were criminalized, and the focus of the SMA was never on addressing such relationships.”
Can the Right to Marry Be Read into the Special Marriage Act, 1954?
In a unanimous decision, the Supreme Court rejected the idea of interpreting the Special Marriage Act (SMA), 1954 to include non-heterosexual marriages. The petitioners had argued that the Court should adopt a “purposive interpretation” of the SMA, making it gender-neutral and inclusive of queer marriages.
CJI Chandrachud’s Opinion
CJI D.Y. Chandrachud held that modifying the SMA to include queer marriages using a “workability model”—by adding, deleting, or substituting words in Section 4—was not feasible.
He said, “This Court would in effect be redrafting the law(s) in the garb of reading words into the provisions,” which would breach the doctrine of separation of powers.
The Chief Justice emphasized
“That accepting such a model would require altering not just the SMA but also several other laws, such as the Hindu Succession Act and the Indian Succession Act, which would encroach on the legislature’s role. He highlighted the Court’s “institutional limitations”, stating that entering into the legislative domain was beyond the judiciary’s mandate.”
Justice Kaul’s Opinion
Justice S.K. Kaul agreed that the SMA excludes queer persons and violates Article 14, but he also acknowledged the “multifarious interpretive difficulties” involved in including non-heterosexual marriages under the Act.
He accepted the Union government’s argument that altering the SMA could cause a “cascading effect” on various laws. However, he pointed out that this effect highlighted a deeper, structural discrimination against queer persons.
He remarked,
“This cascading effect only shows that the discrimination results from a more deeper form of social discrimination against non-heterosexual people that is pervasive and structural in nature.”
Justice S.R. Bhat’s Opinion
Justice Bhat emphasized that while courts can interpret laws to address “new facts and situations,” they cannot alter laws in a way that creates something “conceptually different from what Parliament must have intended.”
He explained that the SMA was designed specifically for heterosexual couples of different faiths to have a civil marriage. He wrote,
“The objects of a statute acquire primacy in interpretation of statutes, and Parliament intended only one kind of couples, i.e., heterosexual couples belonging to different faiths, to be given the facility of a civil marriage.”
Justice Bhat warned against a gender-neutral interpretation of the SMA, stating that it could create problems for women seeking justice. He remarked,
“A law which was consciously created and fought for, by women cannot, therefore, by an interpretive sleight be diluted.”
He highlighted specific challenges under a gender-neutral framework, such as differences in the legal age of marriage for men and women, and gender-specific provisions for divorce and maintenance. He concluded,
“Words of the statutes have to be read, taking into account the fabric of concepts, rights, obligations and remedies which it creates.”
Can Transgender Persons in Heterosexual Relationships Marry Under Current Laws?
In a unanimous decision, the Supreme Court ruled that transgender persons in heterosexual relationships have the right to marry under existing laws.
The petitioners argued that this right should extend to transgender individuals. However, the Union government contended that marriage is only valid between a “biological man” and a “biological woman.”
READ ALSO: Supreme Court Rejects Review Pleas on 2023 Verdict Against Same-Sex Marriage Legalization
CJI Chandrachud’s Opinion
CJI D.Y. Chandrachud stated that transgender persons in heterosexual relationships are entitled to marry through a “harmonious interpretation” of India’s marriage laws and the Transgender Persons Act, 2019. He explained that current laws, such as the Special Marriage Act (SMA) and personal laws, recognize marriages between a “man” and a “woman,” as well as between a “husband” and a “wife” or a “bride” and a “bridegroom.” Excluding transgender persons from these definitions would violate the Transgender Persons Act, which prohibits discrimination against them.
The Chief Justice further clarified,
“A person is a transgender person by virtue of their gender identity and not their sexual orientation.”
Justice S.R. Bhat’s Concurrence
Justice S.R. Bhat agreed with CJI Chandrachud and upheld the Madras High Court’s judgment in Arun Kumar v. Inspector General of Registration (2019), calling it a “correct analysis.”
Directions Issued by the Supreme Court
The Bench acknowledged that queer individuals face widespread violence and discrimination. To address this, CJI Chandrachud issued key directions for the Union, state, and union territory governments:
- Equal Access to Goods and Services:
Ensure that queer individuals are not discriminated against when accessing goods and services. - Public Awareness:
Governments must spread awareness that queer identity is “natural” and “not a mental disorder.” - Support Systems for Queer Individuals:
- Set up hotline numbers and “safe houses” to support those facing violence and discrimination.
- Ban conversion therapy aimed at changing a queer person’s gender identity or sexual orientation.
- Prohibit forced operations on intersex children until they are old enough to give consent.
- Ban hormonal therapy or other medical procedures as a condition for gender identity recognition.
- Develop mental health modules under the Mental Healthcare Act, 2017 to support queer individuals and prevent suicides.
- Police Protection for Queer Couples:
- Prevent harassment of queer couples by the police.
- Ensure that queer individuals are not forced to return to their “natal families if they do not wish to return to them.”
- Respect the “freedom of movement” of queer persons.
- Offer protection to queer individuals facing violence from their families.
- Conduct a preliminary investigation before registering an FIR against a queer couple.
This judgment reaffirms the rights of transgender persons in heterosexual relationships to marry and introduces vital protections for the queer community, fostering equality and dignity.
READ JUDGEMENT
RECENT DISMISSAL OF THE REVIEW PETITIONS BY THE SUPREME COURT
The Supreme Court dismissed the numerous review petitions filed by various petitioners against the judgement, Supriyo Chakraborty & Anr. v. Union of India (2023) . The review bench of Justice Ravindra Bhat (along with Justice Hima Kohli) and Justice PS Narasimha, which made up the majority opinion, concluded,
“We do not find any error apparent on the record. We further find that the view expressed in both judgments is in accordance with law and as such no interference is warranted.”
In the October 2023 verdict, the Supreme Court refused to legally recognize same-sex marriages, stating that such recognition falls within the legislature’s domain. The five-judge constitution bench unanimously declared that there is no fundamental right to marry and referred the decision on same-sex marriage legislation to Parliament.
Despite the unanimous decision, Chief Justice Chandrachud and Justice Kaul advocated for the recognition of same-sex partnerships and emphasized the need for anti-discrimination laws to protect LGBTQIA+ rights. They also argued for the right of same-sex couples to adopt children. However, the bench was divided on the adoption issue, ruling 3:2 against it.
The review petitions filed on the basis that the ruling overlooked crucial constitutional principles, including equality, non-discrimination, and the right to live with dignity. Petitioners contended that the court’s refusal to acknowledge queer marriages rendered millions within the LGBTQ+ community vulnerable, depriving them of essential rights related to spousal benefits, adoption, and inheritance.
As per standard procedures, the review petitions were examined in chambers by the Constitution Bench. The bench collectively decided to dismiss the petitions, concluding that no significant grounds had been presented to justify revisiting the original ruling. In a brief statement, the court reaffirmed that its prior decision was rooted in a comprehensive interpretation of the Constitution and existing laws. It highlighted that the ruling had already granted considerable recognition to the rights of queer individuals, including the right to cohabit and form unions, despite not legalizing same-sex marriages.
READ ORDER
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