Supriyo vs. Union of India: Supreme Court on Same-Sex Marriage!

By Aditi Utkarsha

Facts of the Case & Background

The case revolves around the same sex marriage, legal obstructions and societal challenges faced by the LGBTQIA+ community in India, particularly about Section 377 of the Indian Penal Code and the right to marriage.

Section 377 of the Indian Penal Code criminalized “carnal intercourse against the order of nature.” The provision, inherited from the colonial era, was used to persecute individuals engaging in same-sex relationships and transgender people. This law led to severe discrimination and scrutiny by the judiciary against said group of people.

Historical Context: Section 377 and Battle for Same Sex Marriage

The turning point came with the Naz Foundation case [1], where the Delhi High Court decriminalized consensual homosexual activity. However, this decision was later overturned by the Supreme Court in the Suresh Kumar Koushal case[2]. The matter was then referred to a larger bench, leading to the landmark judgment in Navtej Singh Johar v. Union of India.

In the case of Navtej Singh Johar v. Union of India [3], the Supreme Court declared Section 377 which criminalized consensual homosexual intercourse unconstitutional for the LGBTQ community. The court recognized the rights of LGBTQ individuals to live with dignity, free from discrimination. It further highlighted that the queer community has a right to live with dignity and the state must ensure such. It decriminalized same-sex relationships and affirmed the right to love and companionship for same-gender individuals.

Challenges Faced by the LGBTQIA+ Community

Despite this legal victory, members of the queer community continue to face societal violence, oppression, and discrimination. The State, which bears the responsibility to eliminate discrimination, continues to do little to uplift the community even after the decriminalization.

The persistent challenges faced by the LGBTQIA+ community, include societal, familial, and institutional discrimination. They, despite legal advancements face violence, lack of sensitization, discrimination in education and employment, and struggles for proper identification documents.

Such conditions led to the filing of the writ petition by the petitioners, who are members of the LGBTQIA+ community. They seek legal recognition of their relationships through marriage.

The petitioners argue their exclusion from the right to marriage based on their sexual orientation violates their fundamental rights under Articles 14, 15, 19, and 21 of the Indian Constitution. Hence, they demand equal treatment with heterosexual couples.

This case was first put forth to a 3-judge bench led by Chief Justice of India D.Y Chandrachud. It was later forwarded to a 5-judge bench by CJI Chandrachud comprising Justices Hima Kohli, S.K. Kaul, S.R. Bhat, P.S. Narasimha, and himself.

After 10 days of the hearing, the bench finally gave a judgment deciding the validity of the right to marriage for homosexual couples in India.

Issues Raised before Supreme Court

The issues in this case are related to the rights of the LGBTQIA+ community in India. Here are the main issues raised in this particular case:

Whether it is the fundamental right of a person to marry.
Whether persons of the LGBTQIA+ community have the right to choose a partner, irrespective of gender, and marry.
Whether the provisions of the Special Marriage Act, which do not acknowledge same-sex marriages, are unconstitutional.
Whether the Foreign Marriage Act is unconstitutional for not recognizing overseas marriages of LGBTQIA+ Indian citizens.
Whether the unmarried couples of the LGBTQIA community have the right to adopt.
Whether the marriage of transgender persons in heterosexual relationships has legal validity.
To examine if restrictions based on sexual orientation or gender identity violate Articles 14, 15, 19, and 21 of the Constitution.

Arguments by The Petitioners

The petitioners argue that their Right to equality under Article 14 and their Right to life and personal liberty have been violated because of the laws currently in place. The exclusion of the LGBTQIA community from marrying under acts such as the Special Marriage Act, of 1954 and the Hindu Marriage Act, of 1955 infringes on said rights. They say that there is no reasonable argument for excluding them from the ambit of such rights as there is no difference between homosexuals and heterosexuals under the eyes of law as the difference is purely based on sexual orientation. The petitioners also state that their dignity is being questioned by treating them differently because of some specific laws.

They mainly challenge Section 4 (c) of the Special Marriage Act, 1954 as it denies homosexual couples equal rights in cases of marriage as well as adoption. It denies same-sex couples the right to adopt children.

Some petitioners have also challenged the Foreign Marriage Act, 1969 because of its discriminatory nature against same-sex couples.

Marriage rights should not rely on heteronormative norms and must include all sexual orientations. Petitioners argue that denying marital rights unreasonably restricts freedom of speech, expression, association, and assembly under Article 19. They assert the Constitution and laws must protect relationships as personal bonds.
Petitioners claim denying marital rights unreasonably restricts freedoms, as relationships are personal expressions.

Arguments by The Respondents

Respondents argued marriage traditionally involves only a man and a woman, primarily for procreation, impossible for same-sex couples. They claimed the state intervenes in personal relationships for public interest, like procreation in heterosexual unions.
Respondents argued that state intervention is unnecessary for homosexual couples because they do not procreate and contribute to future generations. They asserted that recognition of homosexual couples is not required due to the absence of procreation, unlike in heterosexual relationships.

Respondents feared that recognizing same-sex marriages might lead to acceptance of incestuous or polygamous relationships. Additionally, they raised logistical concerns about amending numerous laws based on the heterosexual concept of marriage. They cited the Special Marriage Act, 1954, and Hindu Marriage Act, 1955, as examples of current heterosexual-based laws. Moreover, respondents argued that creating new laws for homosexual unions would require extensive amendments to existing Indian laws.

The potential broad-scale implications of recognizing same-sex marriage will prove to be more detrimental according to the respondents.

Judgement

Majority Decision on Recognition of Same-Sex Marriage

The 5-judge bench consisting of the Chief Justice of India D.Y Chandrachud, Justice SK Kaul, Justice S Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha in totality delivered four separate judgments for the case. The majority decision of 3:2 however decided to not recognize marriage between same-sex couples. The decision to do so was left in the hands of the state that is the government.

Justice Bhat and Justice Kohli, in the majority, delivered the majority opinion, while Justice Narasimha provided a separate concurring viewpoint. The Chief Justice of India D.Y Chandrachud and Justice S.K Kaul however gave dissenting judgements to the case.The court unanimously decided that marriage is not a fundamental right, thus denying this right to same-sex couples.

Concerning Section 4(c) of the Special Marriage Act, the court decided that it doesn’t violate the fundamental right to equality under Article 14 of the Indian Constitution. The court opined that there are other options of opting for live-in relationships etc for same-sex couples.

The court decided that the state must ensure no discrimination against queer couples, allowing them to cohabitate and live with dignity. However, it cannot extend the right to marriage to them. Marriage, as a legal institution, is not an inherent and unconditional right. It is subject to existing statutes and societal customs and hence, it is important to note that the court cannot create or mandate legal recognition for civil unions, similar to marriage, without the existence of enacted laws.

Queer couples have the right to exercise autonomy, have privacy and engage in emotional and sexual bonds with each other, but that does not automatically grant them the right to marriage.

Dissenting Opinion on the Right to Marry

In contrast, the dissenting judges, Justices D.Y. Chandrachud and Hima Kohli said that the right to marry is a fundamental right. They contended that Section 4(c) of the Special Marriage Act violates the fundamental rights of same-sex couples. They argued that the said act violates their right to marry, which they consider an integral component of the right to life and personal liberty.

Rights of Transgender Individuals in Heterosexual Relationships

The court also decided that transgender individuals in heterosexual relationships have the right to marry. CJI Chandrachud stated that a transgender person in a heterosexual relationship has the right to marry. He explained this by interpreting existing marriage laws and the Transgender Persons Act harmoniously. Existing laws refer to a marital relationship between a “man” and a “woman.” Restricting this violates the Transgender Persons Act, which prohibits discrimination based on gender identity, not sexual orientation. The court said that being transgender is about gender identity, not sexual orientation.

Adoption Rights for Queer Couples

Regarding adoption of children under current law, queer couples do not possess the right to adopt children. The court upheld regulation 5(3) of Central Adoption Resource Authority Regulations (CARA Regulations) which prohibits unmarried individuals from adopting in a split verdict of 3:2. Justice Bhat, in the majority, pointed out that the Juvenile Justice Act mandates marriage for adoption, ensuring stability for the child. While recognizing the rights of queer couples, he emphasized the Act’s focus on the child’s best interest. While maintaining this regulation, CARA and the Central Government should carefully consider its implications, particularly for families where single individuals adopt and subsequently enter non-matrimonial relationships.

Formation of the High-Powered Committee

To comprehensively examine factors related to same-sex marriage, the court mandated the central government to establish a high-powered committee (HPC) chaired by the Cabinet Secretary. This committee should consider the perspectives of all stakeholders, including states and union territories.The committee should consist of experts well-versed in the social, psychological, and emotional needs of the queer community.

The committee needs to address important issues like recognizing partners in queer relationships as a family for ration card purposes. Also, they have to investigate if it is practical for partners to have a joint bank account and be named as nominees if one of them passes away. The formation of this committee is to make sure queer couples get their rights completely and inclusively, with experts helping out the government in the formulation of laws.

Analysis

The case of Supriyo v. Union of India highlights a significant legal battle for the rights of LGBTQIA+ individuals in India, especially regarding marriage and recognition. The court’s directions for forming a committee indicate a potential shift in the current legal scenario, suggesting a move towards recognizing and addressing the specific needs and rights of queer couples.

However, this case also acts as a precedent for discrimination against same-sex couples. The absence of a universal definition allows diverse perceptions across communities and religions. The Constitution doesn’t prescribe a uniform concept but mandates non-discrimination based on sexual orientation or gender identity. Since the law does not recognize the marriage of queer couples, the queer community as a whole may face future discrimination.

The court’s statement to protect and ensure queer people’s rights are protected however sets a good example. The courts can’t change all laws but should help everyone work together for justice and equality. Respecting everyone’s rights, and making sure the government does its part while considering what the people want can be a base for a progressive India.

[1] 160 Delhi Law Times 277.

[2] CIVIL APPEAL NO.10972 OF 2013.

[3] 2018 INSC 790.

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