SUPRIYO @ SUPRIYA CHAKRABORTY vs UNION OF INDIA
On 17 October 2023

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
Writ Petition (Civil) No. 1011 of 2022
Supriyo @ Supriya Chakraborty & Anr. …Petitioner
Versus
Union of India …Respondent

Date Of Judgment: October 17, 2023
Case citation: 2023 INSC 920
Presiding judges:
Chief Justice (Dr.) Dhananjaya Y. Chandrachud,
Justice Sanjay K. Kaul,
Justice Shripathi R. Bhat,
Justice Hima Kohli,
Justice Pamidighantam S. Narasimha

Factual Background

Under Article 32 of the Indian Constitution, two same-sex couples petitioned the Supreme Court of India for legal recognition of same-sex marriages. Because it discriminates against same-sex couples and denies them the fundamental advantages of marriage, the petitioners claimed that Section 4(c) of the Special Marriage Act, 1954 (“SMA”), which defines marriage as a union between a man and a woman, was unconstitutional. This covers advantages under insurance policies and succession rules as well as options like adoption and surrogacy. The petitioners argued that the government was violating their fundamental rights to equality, freedom of speech, and human dignity by refusing to recognize same-sex marriage.

The Union of India (Respondents) argued that marriage is a social institution which flows from tradition, personal law and religion and needs social acceptability, and only heterosexual marriages have such acceptability. The Union of India argued that the Constitution of India does not recognize a fundamental right to marry. Further, the SMA is not discriminatory, as Parliament never contemplated including non-heterosexual unions during its enactment.

Further, the Union argued that interpreting the SMA to cover non-hetrosexual couples would lead to absurd and unworkable results and impact various other statutes related to adoption, succession, surrogacy, and maintenance which all contemplated as a union between a man and a woman. Only Parliament has the authority to bring about such a change.

Issue Of the Case

(i) Are people who identify as LGBTQIA+ (lesbian, gay, bisexual, transgender, queer, and intersex) entitled to marriage? If so, is it possible for the Indian Supreme Court to issue a ruling to that effect?
(ii) Does the Special Marriage Act of 1954‘s exclusion of LGBTQIA+ weddings constitute unconstitutional discrimination under Article 14 of the Indian Constitution?
(iii) Does the State have an obligation to legally recognize civil unions formed by members of the LGBTQIA+ community, and do they have the right to do so?

Judgment

The Constitution Bench (five judges) wrote four opinions. All five Judges found that there is no fundamental right to marry under the Constitution. All five Judges further held that the Special Marriage Act, 1954 allows marriage only between a male and a female and cannot be interpreted to cover non-hetrosexual marriages as this would amount to an extensive re-writing of the law beyond the role of the Court. However, the Court did not strike down the SMA as unconstitutional.

A majority of three judges (Chief Justice Chandrachud, Justice Bhat, and Justice Kohli) expressly stated that transgender persons in heterosexual relationships as well as Intersex persons who identify as either male or female have the right to marry under existing law.

The Supreme Court ruled by a majority of 3:2 that non-heterosexual couples are not entitled to a civil union unless the statutes are changed by the legislature. Additionally, this 3:2 majority ruled that the Juvenile Justice (Care and Protection of Children) Act, 2015 (“JJ Act”) does not grant unmarried couples—including queer/non-heterosexual couples—the ability to jointly adopt a child. The opinions of Justice Bhat (joined by Justice Kohli) and Justice Narasimha formed the majority opinion of the Court on these issues.

The minority found that non-hetrosexual couples have a right to enter into a civil union. The minority concluded that Article 15 of the Constitution would be violated if civil unions were not recognized. The minority further interpreted Section 57 of the JJ Act to allow unmarried couples to adopt and consequently struck down Regulation 5(3) of the Central Adoption Resource Authority (“CARA”) Adoption Regulation, which limits adoption only to single individuals and married couples who are in a stable marital relationship. The opinions of Justice Chandrachud and Justice Kaul constituted the minority opinion of the Court.

The Supreme Court acknowledged that members of the LGBTQIA+ community faced a variety of legal disadvantages and directed the Union Government to constitute a committee chaired by the Union Cabinet Secretary to set out the rights and benefits queer couples in civil unions would be entitled to.

A) Ratio Decidendi

• No fundamental right to marry

• SMA cannot be interpreted to cover same-sex marriages

• No legal recognition for civil unions of LGBTQIA+ couples

• No right for unmarried or non-hetrosexual couples to adopt

• Transgender persons in hetrosexual relations can marry

Conclusion

The Supreme Court of India ruled that same-sex marriage is not a basic freedom guaranteed by the Constitution in the case of Supriyo @ Supriya Chakraborty vs. Union of India. The court did stress, however, that queer couples have the right to union or partnership, which stems from their autonomy, choice, and privacy rights.

Additionally, the court ordered the Union Government to form a powerful committee to look into LGBT couples’ rights, including those pertaining to marriage, adoption, and social welfare programs.