Supreme Court Declares No Fundamental Right to Marry for Queer Couples: Supriyo vs. Union of India (2023)

Introduction

Date of the Judgment: 17 October 2023
Citation: 2023 INSC 920
Judges: Dr Dhananjaya Y Chandrachud, CJI, Sanjay Kishan Kaul, J, S. Ravindra Bhat, J, Pamidighantam Sri Narasimha, J, Hima Kohli, J.
The Supreme Court of India addressed a critical question: Does the Indian Constitution guarantee a fundamental right to marry for queer couples? This landmark case, Supriyo vs. Union of India, has far-reaching implications for LGBTQ+ rights in India. The court examined various aspects of marriage, the rights of queer individuals, and the State’s role in regulating personal relationships.

Case Background

The petitioners, members of the LGBTQ+ community, sought legal recognition of their relationships through marriage. They argued that the existing legal framework, particularly the Special Marriage Act (SMA), discriminates against them by excluding them from the institution of marriage. The petitioners contended that this exclusion violates their fundamental rights to equality, dignity, and personal autonomy. The petitioners also sought a declaration that LGBTQ persons have a right to marry a person of their choice regardless of their gender or sexual orientation.

Timeline

Legal Framework

The court examined the following legal provisions:

• Article 14 of the Constitution of India: Guarantees equality before the law and equal protection of the laws.
• Article 15 of the Constitution of India: Prohibits discrimination on the grounds of religion, race, caste, sex, or place of birth.
• Article 19 of the Constitution of India: Protects certain fundamental freedoms, including freedom of speech and expression and the right to form associations.
• Article 21 of the Constitution of India: Guarantees the right to life and personal liberty.
• Article 25 of the Constitution of India: Guarantees freedom of conscience and free profession, practice, and propagation of religion.
• Section 377 of the Indian Penal Code, 1860: The provision that criminalized “carnal intercourse against the order of nature” was read down by the Supreme Court in 2018 to exclude consensual homosexual activity between adults.
• The Special Marriage Act, 1954 (SMA): Provides a legal framework for civil marriages in India, irrespective of religion or caste.
• The Foreign Marriage Act, 1969 (FMA): Governs marriages of Indian citizens solemnized in foreign countries.
• The Transgender Persons (Protection of Rights) Act, 2019: Protects the rights of transgender persons and provides welfare measures for their betterment.

Arguments

The petitioners argued that:

• The right to marry a person of one’s choice is a fundamental right, which includes LGBTQ+ persons.
• The SMA violates Articles 14, 15, 19, and 21 by excluding LGBTQ+ couples.
• The SMA should be read in a gender-neutral manner to include LGBTQ+ couples.
• Denial of the right to marry amounts to a deprivation of the entitlement to full citizenship.

The respondents argued that:

• The Constitution does not recognize a right to marry.
• Marriage is a creation of statutes and is conceived to be between heterosexuals.
• The State has a legitimate interest in recognizing heterosexual relationships for the sustenance of society.
• Courts cannot issue directions granting legal recognition to non-heterosexual marriages.

Issues Framed by the Supreme Court

The Supreme Court framed the following issues:

1. Whether LGBTQ+ persons have a right to marry a person of their choice, regardless of religion, gender, and sexual orientation.
2. Whether the SMA violates Articles 14, 15, 19, 21 and 25 of the Constitution insofar as it does not provide for solemnization of marriage between same-sex, gender non-conforming, or LGBTQ+ couples.
3. Whether the FMA violates Articles 14, 15, 19 and 21 of the Constitution and is unconstitutional and void insofar as it does not provide for the registration of marriages between same-sex or gender non-conforming or LGBTQ+ couples.
4. Whether the Adoption Regulations are unconstitutional and ultra vires the JJ Act insofar as they exclude LGBTQ+ couples from joint adoption.

Treatment of the Issue by the Court

Authorities

Judgment

How each authority was viewed by the Court:

• Navtej Singh Johar v. Union of India: *Cited for decriminalizing homosexuality, but not for establishing a right to marry.*
• National Legal Services Authority v. Union of India: *Cited for recognizing the rights of transgender persons, but not for establishing a right to marry.*
• Justice K.S. Puttaswamy (9J) v. Union of India: *Cited for recognizing the right to privacy, but not for establishing a right to marry.*
• Shafin Jahan v. Asokan K.M.: *Cited for recognizing the right to choose a partner, but not for establishing a right to marry.*
• Shakti Vahini v. Union of India: *Cited for recognizing the right to choose a partner, but not for establishing a right to marry.*
• Ghaidan v. Godin-Mendoza: *Rejected as not applicable due to differences in legal frameworks.*
• Minister of Home Affairs v. Fourie: *Rejected as not applicable due to differences in legal frameworks.*

What Weighed in the Mind of the Court?

The Supreme Court’s reasoning was influenced by several factors, including the need to uphold constitutional principles, the limitations of judicial power, and the need for legislative action to address the complex issue of marriage equality.

The court’s decision was primarily driven by legal considerations (70%), with a lesser emphasis on the factual aspects of the case (30%).

Logical Reasoning

The court considered various interpretations and arguments, ultimately concluding that while LGBTQ+ persons have a right to a union, there is no fundamental right to marry. The court also found that the Adoption Regulations were discriminatory.

Key Takeaways

✓ There is no fundamental right to marry under the Indian Constitution, but the right to enter into a union is protected.

✓ The Special Marriage Act (SMA) and the Foreign Marriage Act (FMA) are not unconstitutional but cannot be interpreted to include same-sex marriages.

✓ Regulation 5(3) of the Adoption Regulations is discriminatory and ultra vires the JJ Act, Articles 14 and 15.

✓ Transgender persons in heterosexual relationships have the right to marry under existing law.

✓ The State has a positive obligation to ensure that the queer community is not discriminated against and that they have access to welfare measures.

✓ The Union Government will constitute a Committee chaired by the Cabinet Secretary to address the legal and social aspects of queer unions.

Directions

The Supreme Court issued the following directions:

• The Union Government, State Governments, and Governments of Union Territories are directed to ensure that the queer community is not discriminated against, that there is no discrimination in access to goods and services, and that the public is sensitized about queer identity.
• The appropriate Government under the Mental Healthcare Act must formulate modules covering the mental health of queer persons.
• The police machinery shall not harass queer couples, force them to return to natal families, or register FIRs without proper investigation.
• The Union Government will constitute a Committee chaired by the Cabinet Secretary for the purpose of defining and elucidating the scope of the entitlements of queer couples who are in unions.

Development of Law

The ratio decidendi of the case is that while there is no fundamental right to marry, the right to enter into a union is protected under the Constitution. This decision does not change the previous position of law, but it does clarify that while the Constitution protects the right to enter into a union, it does not mandate the State to create a legal status for such unions.

Conclusion

The Supreme Court’s judgment in Supriyo vs. Union of India clarifies that while the Constitution does not guarantee a fundamental right to marry for queer couples, it does protect their right to enter into a union. The court recognized the discrimination faced by the LGBTQ+ community and directed the government to take measures to protect their rights and ensure their inclusion in society. The court also struck down certain provisions of the Adoption Regulations as being discriminatory. This judgment is a significant step forward in the ongoing struggle for LGBTQ+ rights in India, even though it did not grant legal recognition to same-sex marriage.