Case Study: Supriya Chakraborty v. Union of India

“Supreme Court Upholds Special Marriage Act, Leaves Same-Sex Marriage Unresolved”

Citation: Writ Petition (Civil) No. 1011 of 2022.

Court: Supreme Court.

Date of Judgment: 17^th October, 2023.

Bench: Chief Justice DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli and Justice PS Narasimha.

Facts

• In the earlier landmark case of Navtej Singh Johar v. Union of India[1], the Supreme Court decriminalized same-sex relationships in India by striking down Section 377 I.P.C.
  Subsequently, multiple petitions were filed across the country to recognize the right of marriage of the LGBTQIA+ community.
• Petitioner intended to seek legal recognition of same-sex marriage and argued that non-recognition would lead to violating fundamental rights of the LGBTQIA+ community.
• Petitioners contended that denying marriage rights restricts the LGBTQIA+ community’s ability to express themselves, maintain privacy, and live with autonomy and dignity.
• The Supreme Court acknowledged the ongoing discrimination faced by the LGBTQIA+ community. The court took suo moto cognizance and consolidated petitions from various High Courts, with a central question being whether the “right to marry” is a fundamental right that should extend to same-sex couples.
• The matter was consequently listed before a five-judge Constitutional bench.

Judgment

• The court ruled that the right to marry is not a fundamental right recognized under the Constitution. Furthermore, the court deemed personal laws and the Special Marriage Act to be valid legislation.
• The Court observed that approving same-sex marriage under current laws would be overstepping their authority, as that is the responsibility of lawmakers. While the Court denied same-sex marriage, they clarified this doesn’t infringe on LGBTQIA+ individuals’ right to privacy, autonomy, and dignity.

Key legal issues discussed

• Do the transgenders have the right to marry under personal laws as well as the Special Marriage Act of 1954?
  
  No
  
  The apex court, in the landmark judgment, stated that the right of an individual to marry a person of their choice applies to transgenders also. The court noted that current marriage laws in India outline specific criteria, such as gender identity, that a bride and groom must fulfill for their union to be recognized as a valid marriage. This is true for both personal laws and the Special Marriage Act. The structure of these enactments also regulates marriage between a husband and a wife; thus, they regulate heterosexual marriages in India. Thus; a union of either two trans-man or trans-woman is prohibited.
  
  The laws which are incidental to marriage, such as Domestic Violence Act and Dowry Prohibition Act, seek to address the heteropatriarchal nature of the relationship between a man and a woman. The gender of the person is not the same as their sexuality. A person is a transgender person by virtue of their gender identity. The court further observed that if a transgender person is in a heterosexual relationship and wishes to marry their partner provided, the other requirements with respect to valid marriage are met out, such a marriage would be recognized by law governing marriage. The reason for the same is that in such a scenario, one would be the bride or the wife in the marriage and the other party would be the bridegroom or husband. The court further ordered that any other interpretation of laws governing marriage would be against Article 15 of the Constitution.
  
  
• Whether the Special Marriage Act, 1954 is unconstitutional?
  
  No
  
  The constitutionality of the Act was challenged owing to its applicability upon only heterosexual relationships. It was alleged that the enactment is violating the fundamental rights of the same sex couple.
  
  The court discussed the issue in two situations:
  
  1. The court held that it cannot strike down the Special Marriage Act as unconstitutional because of the exclusion of same-sex couples. The court reasoned that the purpose of the Special Marriage Act was to facilitate marriage between inter-caste and inter-faith. Suppose the Special Marriage Act is declared void. In that case, it will take India back to the pre-independence era when two persons belonging to different religions and castes were unable to celebrate love in the form of marriage. The court observed that if the enactment is declared unconstitutional, it would first lead to social inequality. Secondly, it would push the court to choose between eradicating one form of discrimination and prejudice at the cost of permitting another.
  
  2. The court observed that if it reads into the words of the Special Marriage Act and allied laws such as the Indian Succession Act 1925 and the Hindu Succession Act 1956, it will enter into the realms of the legislature. The court will have to indulge in redrafting the laws in the garb of reading words into the statute, which is beyond their institutional limitation. Therefore, the court held that it is the duty of the legislature to make necessary changes within the Special Marriage Act. The Parliament’s job is to determine and deliberate upon such an issue.
  
• Do the LGBTQIA+ have a Right to marry under the Indian law?
  
  No
  
  The court has discussed the concept of the institution of marriage. The court observed that the concept of marriage has evolved significantly over time, moving away from a rigid social construct. The Special Marriage Act of 1954, enacted by Parliament, aware of the limitations of the 1872 Act, aimed to facilitate marriages independent of religious or caste restrictions. This shift was partly driven by the need to address the horrific practice of “honor killings” inflicted on inter-caste and inter-faith couples by their families. In the landmark case of Shakti Vahini v. Union of India[2], the court recognized this violence and directed the State to protect such couples.
  
  While Shafin Jahan v. Ashokan K.M.[3] upheld the right to choose a life partner under Article 21, it left the question of marriage as a fundamental right unanswered. Historically, marriage existed outside of tate control. However, the State now regulates marriage for two key reasons:
  
  1. To regulate sexual conduct: Marriage promotes an exclusive, committed relationship between partners.
  
  2. To ensure social order: Marriage is central to property inheritance and family structure. This regulation aims to create a space for equality and recognize marriage as a legal unit.
  
  However, despite this recognition of evolving marriage norms, the Court ultimately ruled that the right to marry was not a fundamental right for LGBTQIA+ individuals in this case. The court’s observation suggests that the Constitution protects the act of getting married itself but may not guarantee complete freedom in choosing who you marry.
  
  
• Can the State regulate intimate relationships between same-sex couples?
  
  No
  
  The issue was discussed in detail in the landmark cases of Navtej Singh Johar v. Union of India and K.S. Puttuswamy v. Union of India[4], wherein the court held that intimate relationship is shielded from the State regulation. These cases established that intimate relationships occur in private spaces, and the decisions made within those spaces are protected aspects of individual autonomy. This includes the right to choose a partner and make decisions about procreation. That is why the State had identified certain areas that are private but where the interest in democratizing that space overrides the interest of privacy, for instance the Domestic Violence Act, allows the State intervention to protect the victims.
  
  On considering the above-mentioned judgments, the court stated that neither of these judgments has addressed the issue of whether the Constitution recognizes the right to marry or not. Therefore, in this case, the court held that the Constitution does not expressly recognize a fundamental right to marry. However, it respects the choice of a person with whom they want to enter into a relationship. The court focused on the limitations of its own power and suggested that the legislature, not the judiciary, should address the issue of legalizing same-sex marriage.

[1] (2018) 10 SCC 1.

[2] (2018) 7 SCC 192.

[3] (2018) 16 SCC 368.

[4] (2019) 1 SCC 1.