Authored By: Priti Pragyan Pradhan
Alliance University
CASE CITATION
Full Case Name: Supriyo @ Supriya Chakraborty Vs. Union Of India
Citation: 2023 INSC 920
Court: Supreme Court of India
Date of Decision: 17/10/2023
Bench Composition: Justice D.Y Chandrachud, Justice S.R Bhatta, Justice S.K Kaul, Justice Narasimha, Justice Hima Kohli
INTRODUCTION
The concept of LGBTQ+ existed way before as there has been mention of the same sex couples and sexual minorities in the manuscripts, ancient scriptures, vestiges from about 1500BC. [1] The Supreme court of India decriminalised section 377[2] of the IPC giving acceptance and recognition to the same sex couples, yet there was no law giving them right to marry or form civil union. The petitions for granting marital rights to same sex couples were filed and the Supreme Court of India in the case of Supriyo @ Supriya Chakraborty V. Union of India[3] gave verdict. The case analysis gives a brief analysis of the situation of same sex marriage in India.
FACTS
In the case of Navtej Singh Johar [4] The Section 377 of Penal Code 1860[5] was challenged as it criminalized intercourse between same sex couples that was held against the order of nature. The court held Section 377 of Indian Penal Code unconstitutional in this the case recognizing the relationship in the LGBTQ community. In the Case of NALSA v. Union of India [6] The court gave recognition to person under the gender that is not male or female as third gender persons. Though there were recognition of minority gender Community and their relationships yet their civil union our institutionalization of their relationship was not that led to this case.
This petition is filed by the LGBTQ community who are same sex couples seeking legal institutionalization of their relationships through marriage and how the special marriage defies to include same sex marriages. This special Marriage Act only recognizes heterosexual unions and there is no mention about same sex couples and their civil union. The landmark judgments of justice KS Puttaswamy,[7] Navtej Singh[8] and NALSA v. Union of India[9] were used to determine the fundamental rights of such Community. The petition also highlighted that the Central adoption resource authority[10] (CARA) Adoption Regulations[11] allowed only married couples to adopt jointly a child and same sex couples were restricted eventually.
The petition also took support from Article 15[12], Article 14[13], Article 19[14] and Article 21[15] of the Constitution to establish how the fundamental rights of the LGBTQ+ community is hampered by not letting them or not creating any provision that would allow them to form civil unions or institutionalized their marriage. The government was of the opinion any legalizing same sex marriage would render major changes to personal laws and laws related marriage adoption, succession etc which should be undertaken by the Parliament rather than through judicial interpretation. The Supreme Court heard this matter by constituting a bench for deciding the matter the legality of marriage between same sex couples.
ISSUES
Whether the right to marry is a fundamental right given by the Constitution of India and if it includes same sex couples?
Whether the Special Marriage Act and the Foreign Marriage Act violate fundamental rights under Article 14, 15, 19 and 21 of the Constitution by not giving any recognition homosexual marriages?
Whether the adoption regulation that permits adoption jointly only by married couples ultra wires to Juvenile Justice Act?
Whether the court can extend the terms of the legislation though extending it to homosexual?
ARGUMENTS PRESENTED BY BOTH THE PARTIES
Arguments by the petitioners
The petitioners in this case argued on the right of marriage of same sex couples, and the violation of their fundamental rights that are given by the Constitution. They argued about the inclusion of only heterosexual marriages under the Special Marriage Act, 1954[16] and the Foreign Marriage Act, 1969[17] and did not include heterosexual couples, marriage, which is violation of Articles 14, 15, 19 and 21 of the Constitution[18]. The petitioners relied on the landmark judgement Navtej Singh Johar v. Union of India[19], K.S Puttaswamy v. Union of India,[20] to state that right to choose life partner and marry is a part of personal dignity. The CARA Adoption Regulations, 2020[21] was also challenged by the petitioners as, it only permitted joint custody for married couples, which eventually was an exclusion to heterosexual couples.
Arguments by the Respondent
The Union of India argued that Marriage and not a right guaranteed by the is statutory institution and not a right guaranteed by the constitution. The respondents argued that the inclusion of such terms in the Special Marriage Act, is a legislative step and not in the ambit of the Judiciary, which would lead to significant legal complications. The Union of India also contended that adoption by married couples only was further benefit and safety of the child. They may attract issues in other legislations such as the Hindu Succession Act, adoption laws, domestic violence laws, succession, maintenance etc.
JUDGMENT ANALYSIS
The Supreme Court of India gave its judgment on this case looking over various spheres of legal regulations like the Special Marriage Act[22] , recognition of the LGBTQ community through the lens of the Navtej Singh Johar[23] case, examining the judgment of Court in NALSA V Union of India & Ors[24] and the Transgender Persons Act[25] and the regulations of adoption laws through the CARA guidelines.
It was held that marriage is not a fundamental right particularly established in the Constitution, it is an institution having legal status which cannot be elevated as a fundamental right. But it cannot be denied that various aspects of the marriage can be put under the ambit of right to life and personal liberty[26].
The court held that the constitutionality of the Special marriage act cannot be invalidated as the related legislations like the Indian Succession Act[27] and Hindu Succession Act[28] would make an effort to enact judicial legislation. The section 4 of the Special Marriage Act[29] does not include the union of homo sexual couples, if the section 4 of the Special marriage Act is stuck down it will compromise the primary purpose of the SMA to diversify marriages across different religious and caste backgrounds. The right of queer couples to live together is a constitutional right the court directed the to ensure that there is no discrimination to the relationship of queer individuals and they are to be provided rights such as medical decision, joint bank accounts, prison visitation, and other benefits.
In the matter of the Rights of the Transgender individuals to enter into the union of marriage the court gave the definition of sexual orientation, gender and sex of a person differentiating them as well as reviewed the case of NALSA v UOI[30]. The Supreme Court decided that transgender person have right to get married in a heterosexual relationship and come under the ambit of personal laws, extending this right to the intersex person identifying themselves as male or female.
Another matter the CARA Regulation 5[31] allows only joint adoption by married couples this stance was examined by the court. In this case the majority of the bench held that there is no legal recognition of same sex marriage and they cannot be qualified as married thus the regulation cannot be held unconstitutional. The Chief Justice of India gave recognition to the legal capability of the queer couples to adopt a child jointly, in his verdict.
JUDGEMENT
The court in the case Supriya Chakraborty versus Union of India[32], gave that the pet of acceptance of same sex marriage is dismissed. The Special Marriage Act[33] and the Foreign Marriage Act[34] shall not include homosexual couples and Judiciary cannot include gender neutral language in the legislation. The court reaffirmed that person belonging from the LGBTQ community and their right to choose their own partner and their sexual orientation is recognized. The court gave the reasoning that marriage is a statutory framework Constitutional right, however the right to form relationship was recognised. The court gave instructions to the union to take steps in order to ensure the rights of same sex couples are protected in case of joint bank accounts, medical decisions, prison visitations and other benefits.
ANALYSIS
The Judgment on same sex marriage gave a distinct vision about the legal position of institutionalisation of unions between non heterosexual unions. There was definition of sexual orientation given differentiation from sex and gender which determined the ambit of transgenders and intersex individuals as.
The conception of marriage is not of statis nature, it varies from distinct spheres across all legal, religious and cultural perspectives. The validity of institution of marriage is managed by the state to protect the parties involved in it. There is no explicit expression of right to marry as a fundamental right given to the citizens of India in the India Constitution.
The Special Marriage Act’s[35] application and regulation in restricted to heterosexual unions. The court acknowledged the necessity of the parliament and its resources to make the amendments. It was also contended that the intent of the SMA was not to regulate marriage on the basis of sexual orientation but the interfaith marriages. Court used a restrictive approach in terms not including gender neutral terms.
The minority opinion of the court was the idea of formal institution formation and the creation of framework for the non-heterosexual couples like the marriage and civil unions was rejected by the majority opinion of the bench as there will be a rise in other legislative disparities while covering areas of registration, eligibility criteria, remedies and divorce laws as well as elucidating the fact that recognition of the relationships would not impliedly direct to create formal institutions and frameworks.
This judgment gave validation to state’s obligation to ensure equality, and protection of right irrespective of gender identity of an individual. The Supreme Court of India gave the right to the transgender individuals to identify themselves by any gender identity of their choice and the government recognised the tern ‘third gender’. It was also held that the legislation includes only transgenders, genderqueers and not persons whose sexual orientation is not heterosexual.
CONCLUSION
Marriage as an institution is a legally recognised union in the society that is governed according to the personal laws of the different communities and there are legislations like the Special Marriage Act that unable individuals from different cultural beliefs however it is not a fundamental right of an individual though its certain elements are part of the Fundamental rights. . The queer couples were given recognition by the Supreme court but still the legal position of institutional union of such relationship was a question.
The decision has no doubt affected a large sect of population and attracted a lot a criticism by individuals who are in favour of same sex marriage but it has also secured the population lacking acceptance of such relationship. It is a necessity to make people recognise the rights of the queer community to institutionalise their marriage so that they get legal recognition but in a country like India with a diverse population with different cultural beliefs and a bulky legal system the changes like this should be in a gradual and more systematic process to address all the loopholes and ensure the rights and acceptance of everyone is well secured.
REFERENCE(S):
[1]Analysis: Same–Sex Marriage in India (legalserviceindia.com).
[2] Indian Penal Code, No. 45 of 1860, §377 (India).
[3] Supriyo @ Supriya Chakraborty V. Union of India, 2023 INSC 920.
[4] Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.
[5] Indian Penal Code, No. 45 of 1860, § 377 (India).
[6] National Legal Services Authority v. Union of India, AIR 2014 SC 1863.
[7] Justice K.S Puttaswamy (Retd) v. Union of India, (2017) AIR 2017 SC 4161.
[8] Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.
[9] National Legal Services Authority v. Union of India, AIR 2014 SC 1863.
[10] Central Adoption Resources Authority, Ministry of Women and Child Development, Government of India.
[11] Adoption Regulations 2020, (India).
[12] INDIA CONST. Art. 15 (India).
[13] INDIA CONST. Art. 14 (India).
[14] INDIA. CONST. Art. 19 (India).
[15] INDIA. CONST. Art. 21 (India).
[16] The Special Marriage Act, 1954, § 4, Act No. 43 of 1954.
[17] The Foreign Marriage Act, No. 33 of 1969, (India).
[18] INDIA CONST. Art. 15, 14, 19, 21. (India).
[19] Navtej Singh Johar v. Union of India, AIR 2018 SC 4321
[20] Justice K.S Puttaswamy (Retd) v. Union of India, (2017) AIR 2017 SC 4161
[21] Adoption Regulations 2020, (India).
[22] The Special Marriage Act, 1954, Act No. 43 of 1954.
[23]Navtej Singh Johar V. Union of India, 2018, AIR 2018 SC 4321.
[24] National Legal Services Authority v. Union of India, AIR 2014 SC 1863.
[25] Transgender Persons (Protection of Rights) Act, 2019, Act No. 40 of 2019.
[26] INDIA. CONST. Art 21.
[27] The India Succession Act, 1925, Act No. 39 of 1925.
[28] The Hindu Succession Act, 1956, Act No. 30 of 1956.
[29] The Special Marriage Act, 1954, § 4, Act No. 43 of 1954.
[30] National Legal Services Authority v. Union of India, AIR 2014 SC 1863.
[31] Adoption Regulations 2020, (India).
[32] Supriyo @ Supriya Chakraborty V. Union of India, 2023 INSC 920.
[33] The Special Marriage Act, 1954, Act No. 43 of 1954.
[34] The Foreign Marriage Act, No. 33 of 1969, (India).
[35] The Special Marriage Act, 1954, § 4, Act No. 43 of 1954.
