Case Comment - Supriyo @ Supriya Chakraborty Vs Union Of India
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CASE COMMENT: SUPRIYO @ SUPRIYA CHAKRABORTY
VS UNION OF INDIA Prof. Shakeel Ahmad, Dean & Professor, Department of Law, Aligarh Muslim University Abhishek Kumar, Research Scholar, Aligarh Muslim University Case: Supriyo @ Supriya Chakraborty vs Union Of India Court: Supreme Court of India Bench: Five-Judge Constitution Bench (Chief Justice D.Y. Chandrachud, Justice Sanjay Kishan Kaul, Justice S. Ravindra Bhat, Justice Hima Kohli, and Justice P.S. Narasimha) Date of Decision: October 17, 2023
1. Introduction
When it comes to LGBTQ+ rights and same-sex partnerships in India, the landmark decision in Supriyo @ Supriya Chakraborty vs. Union Of India is hard to miss. A five-judge panel of the Supreme Court's Constitution Bench reached this conclusion after hearing several petitions that sought to change or interpret the Special Marriage Act, 1954 (SMA) in order to legalise same-sex marriage. Although the LGBTQ community's basic rights, such as the freedom to associate with others and live in harmony, were upheld by the Supreme Court in a unanimous decision, the court ultimately decided against granting same-sex couples the legal status of marriage, leaving that decision to lawmakers. The judgment is characterized by its complex split on key issues, offering a nuanced, albeit contested, perspective on the intersection of constitutional rights, social change, and the separation of powers.
2. Background
The genesis of the Supriyo case lies in a series of writ petitions filed before the Supreme Court and subsequently consolidated. The petitioners, a diverse group including same-sex couples and prominent LGBTQ+ rights advocates, sought a judicial declaration recognizing their right to marry. Their main argument was that the current legal system was discriminatory and violated fundamental rights guaranteed by Part III of the Constitution. This was especially true of the Special Marriage Act, 1954, which allows civil marriages but defines the union using gender-specific terms (“male” and “female”). Articles 14 (equality), 15 (non-discrimination),
21 (life and personal liberty), and 19 (freedom of speech) were used by them in their argument
that the rejection of marital equality due to sexual orientation was unlawful. The petitioners urged the Court to either interpret the SMA's provisions in a gender-neutral manner to encompass same-sex couples or issue a directive to Parliament to amend the Act to explicitly include them. The Union of India, representing the executive, opposed these pleas. There was a strong foundation in cultural norms and personal and statutory regulations that supported the conventional view of marriage as a union between a man and a woman. The administration maintained that the recognition of same-sex marriage would need for comprehensive revisions to several statutes and legal frameworks, an ambitious task that is entirely within the purview of lawmakers and not the court.
3. Issues Raised
“The core legal questions presented for the Constitution Bench's determination were: a) Does the Constitution of India recognize a fundamental right to marry for same-sex couples? b) Is the Special Marriage Act, 1954, unconstitutional by virtue of its exclusion of samesex couples? c) Can and should the Supreme Court interpret the provisions of the Special Marriage Act, 1954, or other marriage statutes, to include same-sex couples, or direct the legislature to amend these laws?” d) Do the Union and State governments have a positive obligation under the Constitution to recognize and provide a legal framework for the rights and entitlements of same-sex couples in relationships, even if formal marriage is not recognized?
4. Arguments of the Petitioners
The petitioners' arguments were primarily anchored in the constitutional promise of equality, liberty, and dignity: • “Equality and Non-Discrimination (Articles 14 & 15): The denial of marriage to same-sex couples, when available to heterosexual couples, was argued to be a clear instance of discrimination based on sexual orientation, a characteristic protected under Article 15. Marriage was presented as a fundamental aspect of human dignity and participation in society, and its differential treatment based on sexual orientation was deemed arbitrary and unconstitutional. • Right to Life and Personal Liberty (Article 21): It was argued that the right to life and personal liberty included the ability to marry, have” a family, and participate in intimate relationships.
Some said that same-sex couples should not be denied this privilege because it violates their autonomy, dignity, and the capacity to live a full life, which includes not just their legal status but also the advantages and protections that come with it. • Dignity and Autonomy: The petitioners stressed that the dignity and autonomy of queer individuals are undermined when their relationships lack legal recognition or are treated as secondary. Legal recognition through marriage would serve as an affirmation of their equal worth. • Interpreting SMA: They argued for a non-traditional reading of the SMA, claiming that the Act's secular marriage law purpose justifies a reading that reads genderneutrally gendered words like “husband,” “wife,” “man,” and “woman. ” This reading would bring the Act into line with modern constitutional principles of equality and nondiscrimination.
• Judicial Role in Protecting Rights: While acknowledging the separation of powers, they argued that the judiciary has a constitutional mandate to protect fundamental rights and to interpret or strike down laws that are inconsistent with the Constitution. Correcting discrimination embedded in existing statutes was presented as a core judicial function.
5. Arguments of the Respondents (Union of India)
The Union of India's counter-arguments primarily focused on the institutional competence and societal implications: • Legislative Domain: The central argument was that the recognition of same-sex marriage is a complex policy matter involving diverse personal laws and statutory frameworks, requiring extensive legislative deliberation and amendment. This, they contended, falls exclusively within the purview of Parliament and State Legislatures, and judicial intervention would constitute an overreach into the legislative domain. • Traditional Definition of Marriage: The Union emphasized that marriage, across Indian legal traditions (statutory and personal laws) and cultural understanding, is fundamentally defined as a union between a biological man and a biological woman. Altering this definition would necessitate a fundamental restructuring of legal and societal norms.
• Lack of Societal Consensus: It was argued that there is no widespread societal acceptance of same-sex marriage in India, and a judicial imposition of this right could lead to social disruption and disharmony. • Limited Scope of SMA: The SMA is a specific secular law that coexists with various personal laws. Expanding its scope to include same-sex couples would not resolve issues related to family law (adoption, succession, etc. ) governed by personal laws, creating significant legal inconsistencies and complexities. • State's Interest in Regulation: The State has a legitimate interest in regulating marriage, and the current framework, based on the biological reality of a male-female union, is linked to traditional understandings of marriage, including procreation.
6. Judgment and Reasoning
The five-judge bench delivered four distinct but concurring judgments, resulting in a complex and highly discussed split verdict. Unanimous Findings: Despite the divergence on the core issue of marriage equality, the bench reached unanimous agreement on several critical points that significantly advance LGBTQ+ rights in India:
Affirmation of Queer Rights: “Unanimously and unequivocally affirmed the fundamental rights of queer persons to identity, dignity, and freedom from discrimination. Proceeding from the precedent set in Navtej Singh Johar v. Union of India (2018), the Court restated that sexual orientation is a fundamental trait and that discrimination based on it is unlawful. • Right to Relationship and Cohabitation: The basic right to cohabitation and relationship status for LGBTQ couples is guaranteed under Article 21 (Right to Life and Personal Liberty), which has been universally acknowledged. This lays the groundwork for the constitutional recognition of same-sex partnerships outside of marriage.
” • No Fundamental Right to Marry (in an unqualified sense): The five-judge panel reached a unanimous decision that the right to marry does not exist in a form that would force the government to establish a separate legal framework for same-sex couples. They ruled that the existing marriage right is a legislatively defined and controlled right. • SMA Not Unconstitutional for its original enactment: Despite its intended intent of allowing marriages between men and women, the Special Marriage Act of 1954 was not deemed illegal by any of the judges. They reasoned that its constitutional validity must be assessed based on the legislative competence at the time of its enactment and its continued operation in the current context. Split Verdict on Key Issues: The bench was sharply divided (3:2) on two pivotal issues that were central to the petitioners' plea for marriage equality:
1 Interpretation/Reading Down of the Special Marriage Act, 1954
o Minority Opinion (CJI Chandrachud and Justice Kaul): These two judges favoured interpreting the gendered terms (“husband,” “wife,” “man,” “woman”) in the SMA in a gender-neutral manner to include same-sex couples. Their reasoning was rooted in the “living tree” doctrine of constitutional interpretation, arguing that statutes must be read in light of evolving constitutional values, particularly equality and non-discrimination. They viewed the SMA as a secular framework intended to facilitate marriage regardless of personal laws, and believed judicial interpretation was necessary to align it with the constitutional guarantee of equality for queer persons. They argued that such an interpretation would not amount to judicial legislation but rather judicial evolution of statutory meaning in line with fundamental rights.
o Majority Opinion (Justices Bhat, Kohli, and Narasimha): This majority held that interpreting or reading down the SMA to include same-sex couples would fundamentally alter the legislative scheme and definition of marriage, which is a complex exercise involving numerous interconnected provisions and implications across other laws. They firmly held that this would constitute judicial overreach and amount to legislating from the bench, violating the doctrine of separation of powers. They argued that the Court's role is to interpret existing laws and the Constitution, not to create new legal institutions or rewrite statutes in such a fundamental manner.
2 Directing the State to Recognize ‘Civil Unions’ or a Similar Legal Framework
o Minority Opinion (CJI Chandrachud and Justice Kaul): Consequent to their view that marriage equality was a matter for the legislature, these two judges held that the State has a positive constitutional obligation to provide some form of legal recognition to non-heterosexual relationships, such as civil unions, to ensure that queer couples are not denied the rights and benefits available to married couples (e. g. , in areas like succession, adoption, healthcare decisions, joint finances). They argued that denying any form of legal recognition would perpetuate discrimination and violate the rights to equality, dignity, and life. They proposed directing the Union government to create a legal framework for such recognition.
o Majority Opinion (Justices Bhat, Kohli, and Narasimha): This majority disagreed that the Court could issue a mandamus (a judicial command) directing the State to create a new legal framework like civil unions. They reiterated that creating any form of legal status for relationships, whether marriage or civil unions, is a legislative function. They maintained that the Court's role is to test the constitutionality of existing laws, not to compel the legislature or executive to create new legal institutions or frameworks, again emphasizing the separation of powers. Key Reasoning Highlights from Individual Opinions: • CJI Chandrachud: His opinion strongly championed the rights of queer persons, emphasizing the Constitution's transformative potential and the judiciary's role in dismantling discrimination.
He adopted a progressive stance on interpreting the SMA and recognizing the need for legal recognition of queer relationships through civil unions, reflecting a rights-based approach focused on dignity, autonomy, and equality. • Justice Kaul: His opinion aligned closely with the CJI's on interpreting the SMA and recognizing civil unions, emphasizing the evolving nature of rights and the link between the right to marry/form relationships and dignity/self-expression. He also penned a separate, powerful opinion highlighting the pervasive discrimination faced by queer persons and the need for societal and institutional change. • Justice Bhat: As the author of the main opinion for the majority on the split issues, his reasoning heavily relied on the doctrine of separation of powers.
He drew a clear line between judicial interpretation and judicial legislation, arguing that recognizing samesex marriage or mandating civil unions crossed that line. While acknowledging the rights of queer persons, his opinion prioritized institutional roles and the legislative process for such significant social and legal changes. • Justice Kohli: Concurred with Justice Bhat, reinforcing the argument that recognizing same-sex marriage is a legislative matter and that the Court cannot rewrite the SMA or compel the creation of civil unions. • Justice Narasimha: Also concurred with Justice Bhat, emphasizing the historical context of marriage laws, the legislative history of the SMA, and the intricate legal and social implications of altering the definition of marriage, reinforcing the view that this is a task for Parliament.
7. Significance and Impact
The Supriyo judgment carries significant weight, even without achieving the immediate goal of marriage equality via judicial decree: • Constitutional Affirmation of Queer Rights: The unanimous recognition of the fundamental rights of queer persons to identity, dignity, and freedom from discrimination is a monumental step, solidifying their constitutional standing and providing a strong legal basis for future advocacy against discrimination in various spheres. • Recognition of Right to Relationship: The unanimous recognition of the right to cohabit and be in a relationship under Article 21 provides a degree of constitutional validation and protection for same-sex relationships outside the institution of marriage.
• Judicial Impetus for Executive Action: The unanimous direction to the Union government to take concrete steps to eliminate discrimination against queer persons and to form a committee to examine the rights and entitlements of queer couples in nonheterosexual relationships is a direct and impactful mandate for executive action, potentially leading to policy changes and legal reforms. • Highlighting Legislative Responsibility: By placing the onus for recognizing samesex marriage on Parliament, the judgment clearly identifies the legislative gap and exerts pressure on the political branches to address the issue, shifting the battleground for marriage equality to the legislature.
• Articulation of Judicial Philosophies: The detailed split opinions offer profound insights into differing judicial approaches to constitutional interpretation, the limits of judicial review, and the role of the Court in driving social change, contributing significantly to Indian constitutional jurisprudence. However, the judgment also presents notable limitations: • Denial of Marriage Equality: The most significant limitation is the denial of the legal right to marry, which was the primary relief sought. This prevents same-sex couples from automatically accessing the myriad legal, social, and economic benefits and protections associated with marriage.
Uncertainty Regarding Civil Unions: While two judges strongly advocated for directing the state to recognize civil unions, the majority did not agree, leaving the legal status and framework for civil unions uncertain unless Parliament affirmatively legislates on the matter. • Continued Systemic Discrimination: Without the legal status of marriage or a comprehensive civil union framework, same-sex couples continue to face systemic discrimination in areas like adoption (despite some positive observations from the Court), succession (unless explicitly addressed through wills), insurance, pensions, spousal benefits, and other areas where legal recognition of the relationship is required.
8. Critical Analysis
The Supriyo judgment is a complex tapestry of progressive recognition and judicial restraint. The LGBTQ+ movement can celebrate a major win with the unanimous conclusions, which clearly establish gay people's basic rights inside the constitutional framework and provide a strong mandate to combat prejudice. The recognition of the right to relationship and the direction for executive action are concrete steps forward. However, the majority's decision to defer the question of marriage equality and civil unions to the legislature has drawn substantial criticism. Critics argue that while the separation of powers is a vital constitutional principle, the Supreme Court has historically intervened to strike down or interpret laws that perpetuate discrimination and violate fundamental rights, even when such intervention necessitates significant legal and social adjustments.
The argument that recognizing same-sex marriage is solely a legislative matter is seen by some as an abdication of the Court's duty to protect minority rights against potential majoritarian inaction or discrimination embedded in existing statutes like the SMA. The detailed and compelling minority opinions by CJI Chandrachud and Justice Kaul, which demonstrate how the SMA could potentially be interpreted to include same-sex couples and why the State has a positive obligation to provide legal recognition for relationships, highlight the potential for a more transformative judicial approach that did not command a majority. The judgment underscores the ongoing tension between judicial activism and judicial restraint in India, particularly when fundamental rights claims intersect with complex social issues and require structural changes to existing laws.
While the Court acknowledged the discrimination faced by queer couples, the majority felt constrained by the perceived boundaries of judicial power, choosing to signal the need for legislative action rather than undertaking the task itself. This approach, while respecting institutional roles, leaves the LGBTQ+ community reliant on the political process for achieving full equality in relationship recognition, a process that can be slow and susceptible to political pressures. The judgment's strength lies in its unanimous affirmation of rights and its clear directives for addressing discrimination. Its limitation lies in its perceived inability (by the majority) to provide the specific remedy of marriage equality or a mandated civil union framework, leaving a significant gap in legal recognition that perpetuates certain forms of discrimination.
9. Conclusion
In the historic case of Supriyo @ Supriya Chakraborty vs. Union of India, the Supreme Court upheld the right to relationship and the basic rights of LGBTQ people while putting the issue of marriage equality in the hands of lawmakers. The unanimous findings represent a crucial constitutional validation of LGBTQ+ identity and rights in India and provide a clear mandate for the executive to take steps against discrimination. However, the majority's stance on interpreting the SMA and mandating civil unions means that the legal recognition of same-sex marriage and comprehensive relationship rights will require legislative action by the Parliament. The judgment serves as a powerful judicial acknowledgment of the rights and dignity of queer individuals and a clear signal to the legislature to address the existing legal vacuum and discrimination.
While not the outcome many petitioners hoped for regarding marriage itself, it marks a significant step forward in the broader struggle for LGBTQ+ equality in India by firmly establishing their constitutional rights and placing the responsibility for further legal recognition squarely on the shoulders of the elected representatives. The path to full equality in relationship recognition continues, with the focus now shifting decisively to the legislative arena.