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

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

Court: Supreme Court of India

Citation: (2023) SCC Online SC 1225

Date of Decision: 17 October 2023

Bench Composition:

• Chief Justice D.Y. Chandrachud
• Justice Sanjay Kishan Kaul
• Justice S. Ravindra Bhat
• Justice Hima Kohli
• Justice P.S. Narasimha

This matter was heard by a Constitution Bench of five judges. The proceedings garnered significant public attention, culminating in a split verdict (3:2). While the Bench was unanimous in recognizing the need for queer rights, they diverged sharply on the judicial remedy and the interpretation of the Special Marriage Act 1954.

Introduction

Supriyo @ Supriya Chakraborty & Anr. v. Union of India represents a pivotal constitutional challenge in Indian jurisprudence, seeking legal recognition for same-sex marriage. The petitioners argued that the absence of a legal framework for such unions violated the fundamental rights of LGBTQ+ individuals. This case is intrinsically linked to the Supreme Court’s earlier progressive judgments, specifically Navtej Singh Johar v. Union of India (2018), which decriminalized homosexuality[1], and Justice K.S. Puttaswamy (Retd.) v. Union of India (2017), which affirmed the right to privacy[2].

The significance of the case lies in its examination of the intersection between constitutional morality and social morality. It raised complex questions regarding equality (Constitution of India art 14), non-discrimination (art 15), and the right to life and personal liberty (art 21)[3]. Furthermore, the judgment tested the limits of judicial intervention, specifically whether the Court could read words into existing statutes or if this domain was exclusively reserved for the Legislature[4]. Ultimately, the judgment resulted in a split verdict, refusing to legalize same-sex marriage but making significant observations regarding the rights of queer individuals.[5]

Facts of the Case

The factual matrix of the case revolves around a series of petitions filed by same-sex couples who sought legal validation of their relationships. The timeline can be structured chronologically as follows:

Multiple petitions were filed before the Supreme Court, including those by gay couples and a couple where one partner is a trans-man. The primary grievance was that despite Navtej Singh Johar (2018) decriminalizing consensual homosexual relationships[6], the State continued to deny them the right to marry. This denial created a “limbo” where they could exist but could not formalize their union.

The petitioners approached the Court seeking recognition of their marriages under the Special Marriage Act, 1954 (SMA)[7]. They argued that the Act, being a secular legislation, should be interpreted in a gender-neutral manner. Specifically, they challenged the use of gendered terms like “male” and “female” in ss 4 and 5 of the SMA[8], which they contended implicitly excluded same-sex couples. The reliefs sought included a gender-neutral interpretation of the SMA, a declaration that the SMA applies to same-sex couples, or, in the alternative, a recognition of civil unions.

The Respondent, the Union of India (UOI), vehemently opposed these petitions. The State argued that marriage is essentially a heteronormative institution recognized by law and that only the legislature has the competence to define or alter its scope. The UOI contended that the existing legal framework is based on the biological binary of a man and a woman and that any interference by the judiciary would amount to judicial overreach[9].

Legal Issues

The Court framed the following principal legal issues for determination:

1. Whether the right to marry a person of one’s choice constitutes a fundamental right under the Constitution of India[10].
2. Whether the exclusion of same-sex couples from the institution of marriage violates the fundamental rights guaranteed under Article 14 (Right to Equality), Article 15 (Prohibition of Discrimination), and Article 21 (Right to Life and Personal Liberty)[11].
3. Whether the Court possesses the competence to reinterpret or “read down” the Special Marriage Act, 1954 to make it gender-neutral and inclusive of same-sex couples[12].
4. Whether the creation of a new legal regime for civil unions falls within the scope of judicial review or is exclusively the domain of the Legislature (Separation of Powers)[13].

Arguments Presented

Petitioners’ Arguments Counsel for the petitioners argued that marriage is not merely a social institution but a fundamental aspect of dignity, autonomy, and identity. They contended that the refusal to recognize same-sex marriage relegates queer individuals to a status of “second-class citizens,” denying them the material and psychological benefits of marriage.

• Discrimination: They argued that the SMA discriminates on the basis of sexual orientation, which is analogous to discrimination on the “sex” ground prohibited by Constitution of India art 15[14].
• Precedent: Relying heavily on Navtej Singh Johar, they submitted that if sexual orientation is an intrinsic part of identity, the denial of marriage rights violates the core of Article 21 (dignity)[15].
• Interpretation: They urged the Court to adopt a “reading down” approach, substituting gendered words in the SMA with gender-neutral terms (e.g., “spouse” instead of “husband/wife”) to align the statute with the Constitution[16].

Respondent’s Arguments (Union of India) The Union of Government, supported by various religious bodies, argued that marriage in India is a statutorily regulated, socially sanctified institution between a biological man and a biological woman.

• Legislative Domain: The UOI asserted that marriage is a policy matter. The Court cannot legislate or create a new social institution, which is the function of Parliament[17].
• Statutory Complexity: They argued that recognizing same-sex marriage would have a cascading effect on 160+ personal laws and statutory provisions (e.g., adoption, succession), requiring extensive legislative deliberation not suitable for judicial adjudication.
• Judicial Restraint: The State emphasized the doctrine of Separation of Powers, urging the Court to leave the matter to the democratic process where societal consensus can be evolved[18].

Court’s Reasoning and Analysis

The judgment was delivered with separate opinions, resulting in a 3:2 split on the specific issue of legalizing marriage.

(A) Majority Opinion (Justice Bhat, Justice Kohli, Justice Narasimha): The majority refused to legalize same-sex marriage or read the Special Marriage Act in a gender-neutral manner.

• No Fundamental Right to Marry: The majority held that while there is a right to form relationships (under art 21), there is no fundamental right to marry that compels the State to create a new legal framework or alter existing statutes[19].
• Institutional Competence: Justice Bhat, authoring the lead opinion, emphasized that the power to legislate on marriage belongs exclusively to the Legislature and the State. The Court cannot engage in “judicial legislation” by amending the SMA to include same-sex couples, as this would violate the Separation of Powers[20].
• Scope of SMA: The Court held that the SMA is a specific regulatory framework for heterosexual marriages and cannot be expanded through interpretative gymnastics[21].
• Queer Rights: However, the majority was careful to affirm the rights of queer persons. They declared that queer couples have the right to cohabit, the right to choose their partners, and the protection of the law from violence and discrimination[22].

(B) Minority Opinion (CJI Chandrachud & Justice Kaul): CJI Chandrachud and Justice Kaul dissented on the question of legal recognition, supporting a broader interpretation of rights.

• Right to Intimacy: CJI Chandrachud held that the right to marry includes the right to choose a partner and the right to intimate association, which is protected under Constitution of India art 21[23].
• Civil Unions: Both dissenting judges agreed that the State cannot deny legal recognition entirely. CJI Chandrachud opined that the State is obligated to recognize civil unions for same-sex couples to ensure they are not treated as “forever excluded.” Justice Kaul concurred, suggesting that the State could create a separate legal framework for civil unions[24].
• Reading Down the SMA: CJI Chandrachud argued that the SMA could be interpreted to include non-heterosexual couples by reading the term “spouse” in a gender-neutral manner. He believed that excluding queer couples was a violation of Constitution of India arts 14 and 15[25].

Key Doctrines Discussed The judgment extensively debated Transformative Constitutionalism – the idea that the Constitution must evolve to protect marginalized groups[26]. However, the Majority prioritized Separation of Powers, arguing that social change on such a scale must come from the Legislature, not the Judiciary.

Judgment and Ratio Decidendi

Final Holding: The Supreme Court declined to legalize same-sex marriage[27]. It refused to strike down or read down the provisions of the Special Marriage Act, 1954 to include same-sex couples[28]. Consequently, the request for a civil union regime was also rejected by the majority[29].

Ratio Decidendi: The Court held that there is no unqualified fundamental right to marry under the Constitution of India[30]. The majority established that the institution of marriage is regulated by specific statutory laws, and the judiciary does not have the competence to rewrite these laws or create a new regime of civil unions, as this falls exclusively within the legislative domain[31].

Important Directions/Observations: Despite denying the marriage remedy, the Court issued significant directions:

1. The Union government was directed to form a committee to examine the rights and entitlements of queer couples who are in unions[32].
2. The police were directed not to harass queer couples[33].
3. Queer persons were held entitled to services like ration cards, bank accounts, and joint nominations, even without marriage[34].
4. Transgender persons in heterosexual relationships were held to have the right to marry under existing personal laws (based on self-identified gender, not biological sex)[35].

Critical Analysis

The judgment in Supriyo represents a classic tension between judicial restraint and the protection of fundamental rights, presenting a mixed bag of strengths and weaknesses.

Strengths: The primary strength of the judgment lies in its respectful acknowledgment of queer existence. Unlike the colonial-era attitudes rejected in Navtej, the Court explicitly recognized that queer persons deserve dignity and protection[36]. The direction to form a committee to address administrative hurdles and the unambiguous assertion that the state cannot discriminate in providing basic services (like opening joint bank accounts) are practical steps toward de-stigmatization[37]. The majority’s strict adherence to the separation of powers prevents the accusation of judicial overreach, maintaining the institutional balance of democracy[38].

Weaknesses: However, the judgment falls short of the promises of Navtej Singh Johar. By refusing to read the Special Marriage Act gender-neutrally, the Court effectively maintained the “second-class” status of LGBTQ+ citizens[39]. The argument that the Court cannot legislate ignores its constitutional duty to enforce fundamental rights when the legislature remains silent or discriminatory. This reliance on the Legislature is problematic given the political reluctance to address LGBTQ+ issues. The result is a “paralysis of rights” – where Navtej gave the right to love, Supriyo failed to secure the legal structure to protect that love.

Evaluation: Constitutional Morality vs. Social Morality The judgment fails to uphold the doctrine of transformative constitutionalism effectively. While Navtej prioritized constitutional morality over social morality, Supriyo seems to have deferred to the perceived social morality of the legislature[40]. The fear of societal backlash or legislative complexity appears to have overridden the constitutional mandate of equality (Constitution of India art 14). The “committee” approach, while well-intentioned, risks pushing the burden of equality back onto the very executive branch that opposed the rights in the first place.

Impact: The judgment leaves the LGBTQ+ community in a precarious position. While they can cohabit without fear of criminal prosecution, they lack the legal safety net of marriage (inheritance, maintenance, adoption)[41]. It shifts the battle to the political arena, where the community has little representation. However, the unequivocal recognition of queer relationships by the Apex Court sets a strong precedent for future civil rights litigation.

Conclusion

In conclusion, Supriyo @ Supriya Chakraborty & Anr. v. Union of India is a transitional judgment that reaffirmed the dignity of LGBTQ+ individuals but ultimately denied them the institution of marriage[42]. The Bench was unanimous in its empathy for the community but divided on the remedy. By deferring to the Legislature, the Court missed an opportunity to provide substantive equality, leaving the question of marriage rights legally unresolved. The case highlights the limits of judicial intervention and serves as a reminder that while the Courts can protect rights, the final attainment of social equality often requires legislative action. The ball now rests firmly in Parliament’s court[43].

Reference(S):

[1] Navtej Singh Johar v Union of India (2018) 10 SCC 1.

[2] Justice K.S. Puttaswamy (Retd) v Union of India (2017) 10 SCC 1.

[3] Constitution of India 1950, arts 14, 15, 21.

[4] Supriyo (n 1) paras 35 – 40 (Discussion on Separation of Powers).

[5] Supriyo (n 1).

[6] Navtej (n 4).

[7] Special Marriage Act 1954.

[8] Special Marriage Act 1954 ss 4, 5.

[9] Supriyo (n 1) (Written Submissions of the Union of India).

[10] Constitution of India art 21. See also Shafin Jahan v Asokan KM (2018) 16 SCC 368.

[11] Constitution of India arts 14, 15, 21.

[12] Supriyo (n 1) para 45 (Issue formulated by the Court).

[13] Supriyo (n 1) para 50.

[14] Supriyo (n 1) (Petitioners’ Arguments).

[15] Navtej (n 4) paras 96 – 103.

[16] Supriyo (n 1) (Prayer Clause).

[17] Supriyo (n 1) (Respondent’s Written Submissions).

[18] Kesavananda Bharati v State of Kerala (1973) 4 SCC 225 (Basic Structure doctrine regarding Separation of Powers).

[19] Supriyo (n 1) (Majority Opinion, paras 150 – 160).

[20] Supriyo (n 1) (Opinion of Bhat, J).

[21] Supriyo (n 1).

[22] Supriyo (n 1) para 180 (Directive regarding protection of queer couples).

[23] Supriyo (n 1) (Dissenting Opinion of Chandrachud, CJ, para 51).

[24] Supriyo (n 1) (Concurring Opinion of Kaul, J).

[25] Supriyo (n 1) (Dissenting Opinion of Chandrachud, CJ).

[26] Navtej (n 4) (concept of Transformative Constitutionalism).

[27] Supriyo (n 1) (Order of the Court).

[28] Supriyo (n 1) (Majority View).

[29] Supriyo (n 1) (Kaul, J concurred on need for civil unions but differed on judicial mechanism; Majority rejected).

[30] Supriyo (n 1) para 170 (Right to marry not a fundamental right).

[31] Supriyo (n 1) (Ratio of the Majority).

[32] Supriyo (n 1) (Direction regarding Committee formation).

[33] Supriyo (n 1) (Direction to Police/Authorities).

[34] Supriyo (n 1) (Opinion of Bhat, J).

[35] Supriyo (n 1) (Opinion of Chandrachud, CJ regarding trans persons).

[36] Supriyo (n 1) (Recognition of queer identity).

[37] Supriyo (n 1) (Administrative Directions).

[38] Supriyo (n 1) (Bhat, J on Separation of Powers).

[39] Navtej (n 4) vs Supriyo (n 1).

[40] Navtej (n 4) (Doctrine of Constitutional Morality).

[41] Supriyo (n 1) (Consequences of denial of marriage).

[42] Supriyo (n 1).

[43] Supriyo (n 1) (Closing remarks of the Bench).