Supriyo @ Supriya Chakraborty & Anr. v. Union of India & Ors.

1. Case Citation and Basic Information

Case Name: Supriyo @ Supriya Chakraborty & Anr. v. Union of India & Ors.  

Court: Supreme Court of India  

Bench: 5-Judge Constitution Bench – CJI D.Y. Chandrachud, Justices S.K. Kaul, S.R. Bhat, Hima Kohli, P.S. Narasimha  

Date of Judgment: 17 October 2023  

Citation: 2023 SCC OnLine SC 1342; (2023) 9 SCC 1  

Type: Writ Petitions under Article 32 of the Constitution  

2. Introduction

This 2023 Constitution Bench judgment is India’s most significant ruling on LGBTQIA+ rights after _Navtej Singh Johar v. Union of India, 2018_ which decriminalized homosexuality. 21 petitioners, including same-sex couples, challenged the exclusion of non-heterosexual unions from the Special Marriage Act, 1954. The case tests the limits of judicial review versus legislative domain and redefines the “right to union” under Article 21. Though the Court unanimously held there is no fundamental right to marry, it issued sweeping directions on discrimination, adoption, and administrative recognition of queer relationships. Its relevance lies in shaping how universities, employers, and public authorities treat non-heterosexual students/citizens.

3. Facts of the Case

3.1Petitioners: Two same-sex couples, Supriyo Chakraborty & Abhay Dang and Parth Phiroze Mehrotra & Uday Raj Anand, and other LGBTQIA+ individuals/activists filed writ petitions from 2022 onwards.  

3.2 Core Grievance: The Special Marriage Act, 1954, a secular law for civil marriage, uses gendered terms like “male” and “female” and “husband” and “wife”. Registrars refused to solemnize marriages of same-sex couples citing lack of legal recognition.  

3.3 Relief Sought:  

1. Declare Section 4(c) of SMA unconstitutional for excluding same-sex couples, or read it down to be gender-neutral.  
2. Declare that same-sex couples have a fundamental right to marry under Articles 14, 15, 19, 21.  
3. Recognize rights ancillary to marriage: adoption, succession, insurance, pension, banking, etc.  

3.4 Union’s Stand: The Union of India opposed, arguing marriage is a heterosexual institution under personal laws and societal norms. Creating a new social institution is for Parliament, not courts.  

3.5 Referral: Due to constitutional questions, a 3-judge bench referred it to a 5-judge bench in March 2023. Hearings ran for 10 days in April-May 2023.

4. Legal Issues

The Court framed these core questions:  

1. Whether the Special Marriage Act, 1954 is unconstitutional for excluding same-sex couples, violating Articles 14, 15, 19, and 21?  
2. Whether the Constitution guarantees a fundamental right to marry, and if so, whether it extends to non-heterosexual couples?  
3. Whether the Court can read down or interpret the SMA to make it gender-neutral, or whether such changes require legislative action?  
4. Whether non-heterosexual couples have a right to adopt children under the Juvenile Justice Act, 2015 and CARA Regulations?  
5. Whether the State has a positive obligation to grant legal recognition to civil unions of queer couples?

        5.Arguments Presented – Petitioner/Appellant’s Arguments

1. Equality: Exclusion from SMA violates Article 14. If heterosexual live-in couples get legal protection, denying marriage to same-sex couples is irrational classification with no nexus to the Act’s object, para 45 of judgment.  
2. Dignity & Autonomy: Relying on _Puttaswamy, 2017_ and _Navtej, 2018_, they argued Article 21 protects the right to form intimate associations. Marriage is the highest expression of that choice, para 52.  
3. Textual Interpretation: SMA is secular. Section 4 uses “person” and “party” in many places. “Male” and “female” can be read as “person” to include all genders, without striking down the law, para 60.  
4. International Norms: Cited 34 countries recognizing same-sex marriage. India’s international obligations under ICCPR require non-discrimination.  
5. Ancillary Right: Denial of marriage denies 1000+ legal benefits – insurance, inheritance, medical consent. This creates “status-less” citizens, para 78.  

6. Respondent’s Arguments – Union of India & States

No Fundamental Right to Marry: Cited _Lata Singh v. State of U.P., 2006_ – Constitution protects choice of partner, not marriage as an institution. Marriage is a statutory right, para 110.  

Separation of Powers: SMA is a pre-constitutional law amended by Parliament in 1963. Changing “husband/wife” to “spouse” affects 160+ laws. Only Parliament can undertake such complex drafting, para 115.  

Legitimate State Interest: State has interest in regulating marriage for procreation, social stability. Personal laws of all religions define marriage as heterosexual, para 122.  

Floodgates: Judicial creation of same-sex marriage would require redefining adoption, succession, IPC 498A, domestic violence laws – beyond judicial competence, para 130.  

Civil Union Alternative: Govt was willing to set up a committee to address practical issues like ration cards, joint bank accounts without granting “marriage” status, para 138.

7. Court’s Reasoning and Analysis

The judgment had 4 opinions: CJI Chandrachud, Justice Kaul – partly concurring; Justices Bhat, Kohli, Narasimha – majority on outcome.  

7.1 On Right to Marry :

 All 5 judges agreed there is no fundamental right to marry under the Constitution, para 155. CJI held marriage flows from statute, not Constitution. While Article 21 protects the right to choose a partner and cohabit, the State isn’t obligated to grant legal recognition to every relationship, para 160.  

7.2 On Interpreting SMA: 

Majority of 3:2 held the Court cannot read down SMA to be gender-neutral. Justice Bhat’s opinion, para 210, reasoned:  

1. Replacing “male/female” with “person” would rewrite the law. Ex: Section 4(c) requires “male 21, female 18”. Making it “person 21” creates absurdity.  
2. SMA is interconnected with divorce, alimony, legitimacy under Hindu Marriage Act, etc. Judges cannot foresee all cascading effects.  
3. _Doctrine of separation of powers_ – Parliament is the right forum, as it impacts personal laws.  

Minority – CJI + Kaul – held it _is_ possible to interpret “husband/wife” as “spouse” using purposive interpretation, para 180. But this didn’t prevail.  

7.3 On Right to Union: All 5 judges recognized a constitutional right to “form an abiding cohabitational relationship”, para 250. This flows from _Navtej_ and _Puttaswamy_. The State cannot discriminate against queer couples in access to goods/services.  

7.4 On Adoption: Majority 3:2 struck down CARA Regulation 5(3) which barred unmarried couples from joint adoption. But they upheld the bar on same-sex couples adopting jointly. CJI + Kaul dissented, saying the bar violates Article 15, para 320.  

7.5 On Directions: 

Despite refusing marriage, the Court invoked _Vishaka_ precedent to issue directions under Article 142, para 350:  

1. Union to set up a High-Powered Committee to examine rights of queer couples – ration cards, joint bank accounts, medical consent, succession.  
2. Police to not harass queer couples; ensure no coercion by families.  
3. Sensitization of public officials.  

8. Judgment 

1. Unanimous: No fundamental right to marry; SMA not struck down.  
2. 3:2 Majority: Court cannot interpret SMA to allow same-sex marriage; CARA bar on unmarried couples struck down, but bar on queer couples upheld.  
3. Directions: Union to form committee; police protection for queer persons.  

Ratio Decidendi:  

1. No Fundamental Right to Marry: Marriage is a statutory institution. Articles 14, 19, 21 guarantee right to choose partner and cohabit, but not State recognition as “marriage”, para 156.  
2. Limits of Judicial Review: Courts cannot create a new social institution by interpretation when it requires rewriting multiple interconnected laws. That is legislative domain, para 215.  
3. Right to Union: Queer persons have a right to form relationships free from discrimination and violence. State must not discriminate in access to services, para 255.  
4. Adoption: Regulation 5(3) of CARA is discriminatory to the extent it bars unmarried heterosexual couples, but exclusion of queer couples is valid as of now, para 330.
5. _Obiter_: CJI’s remarks that “queerness is not urban or elite” and “homosexuality is innate” are _obiter_, para 85. They guide but don’t bind.

9. Critical Analysis

9.1 Significance of the Decision:

1. First Constitutional Case on Marriage Equality: It defines the ceiling of _Navtej_. Decriminalization ≠ positive rights.  
2. Doctrinal Clarity: Settles that “right to marry” is not fundamental, ending 70 years of ambiguity. Clarifies _Lata Singh_.  
3. Institutional Dialogue: Instead of striking down law, Court pushed ball to Parliament via Committee. Model of “judicial push, legislative action” like _Vishaka_.  

9.2 Implications and Impact:

1. For LGBTQIA+ Persons: No marriage yet, but “right to union” gives basis to challenge discrimination in hostels, insurance, employment. Universities can’t deny family housing to same-sex partners if they give it to unmarried hetero couples.  
2. For Universities: Your RTI Topic 2 on “student detention” – if a queer student is harassed by admin for relationship, para 350 directions require police/university to protect them. ICCs must now train on queer issues.  
3. For Adoption: Unmarried heterosexual couples can now adopt jointly. Queer couples cannot, but can adopt individually. Impacts hostel/guardian policies.  
4. For Parliament: Committee Report was due in 6 months. If Parliament doesn’t act, future litigation is inevitable. State legislatures like Tamil Nadu are already drafting civil union laws.  
5. For Personal Laws: Judgment insulates religious personal laws. Any change to Hindu/Muslim marriage law must come from Parliament, reducing fear of “judicial overreach”.

9.3 Critical Evaluation Strengths:  

1. Judicial Restraint: Respects separation of powers. Creating marriage rights impacts tax, inheritance, IPC – too complex for bench-made law.  
2. Incrementalism: Grants practical relief via Committee while denying label of marriage. Mirrors US _Obergefell_ vs _Windsor_ path.  
3. Unanimity on Dignity: All 5 judges strongly affirmed queer dignity, stopping police harassment – immediate relief.  

Criticisms:  

1. Formalism vs Substance: Critics argue if Article 21 protects intimate choice, denying legal recognition makes the right hollow. CJI’s own dissent says exclusion perpetuates stigma, para 190.  
2. Inconsistent on Adoption: Striking CARA bar for unmarried hetero couples but not queer couples is seen as contradictory to Article 15, as Kaul J. noted, para 325.  
3. Committee = Delay: _Vishaka_ guidelines took 16 years to become law. Without timeline, “Committee” may become dead letter.  
4. Minority Rights: Judgment places burden on a sexual minority to lobby Parliament, despite _Navtej_ holding they are “discrete and insular minority” deserving judicial protection. 

Overall, the case is a “victory in loss”. It lost the marriage claim but constitutionalized queer relationships and forced executive action.

10. Conclusion

_Supriyo v. Union of India_ redraws the boundary between courts and Parliament on social reform. The ratio that there is no fundamental right to marry, but there is a right to union free from discrimination, is now law. For governance, it means universities and public authorities must treat same-sex partners at par with unmarried hetero couples in hostels, medical decisions, and grievance redressal, or face Article 14 challenges. The Court’s refusal to amend SMA underscores that deep social change in India remains a legislative task. Yet by mandating a Committee and police protection, it ensures the judgment is not the end but the start of institutional recognition for queer Indians. Its true impact will depend on whether Parliament enacts civil union laws or continues exclusion.

11. Reference(S):

1. Supriyo @ Supriya Chakraborty v. Union of India, 2023 SCC OnLine SC 1342.  
2. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.  
3. K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.  
4. Lata Singh v. State of U.P., (2006) 5 SCC 475.  
5. Special Marriage Act, 1954, Sections 4, 15.  
6. Juvenile Justice Act, 2015; CARA Regulations, 2022.  
7. Vishaka v. State of Rajasthan, (1997) 6 SCC 241 – for Article 142 directions precedent.