Supriyo @ Supriya Chakraborty & Anr. (Petitioners) Vs. Union of India (Respondent)

Writ Petition (Civil) No. 1011 of 2022
(5JB, SK Kaul, S Ravindra Bhat, Hima Kohli, PS Narasimha, DY Chandrachud JJ., delivered by Dr DY Chandrachud, CJI)

Facts: The grievance of the petitioners (who are members of the LGBTQIA+ community) is not that society discriminates against them in an informal (and invisible) manner. That is a secondary but an equally important stage of how discrimination pans out against a marginalised class. The petitioners claim that they are discriminated on a more formal (and visible) level. The petitioners contend that the State through the operation of the current legal regime discriminates against the queer community by impliedly excluding the queer community from a civic institution: marriage. The petitioners have invoked the equality code of the Constitution to seek legal recognition of their relationship with their partner in the form of marriage. The petitioners do not seek exclusive benefits for the queer community, which are unavailable to heterosexuals. They claim that the State ought to treat them on par with the heterosexual community.

Issue: Whether legal recognition in the form of marriage can be given to non-heterosexual relationships?

Arguments on behalf of counsel for petitioners: Mr. Mukul Rohatgi

It is submitted that articles 19 and 21 of the Constitution guarantee all persons the right to marry a person of their choice, including LGBTQIA+ persons. The Special Marriage Act (SMA) violates the right to dignity and decisional autonomy of LGBTQIA+ persons and therefore violates Article 21. Excluding LGBTQIA+ persons from the SMA discriminates against them on the basis of their sexual orientation and the sex of their partner. This violates Article 15 of the Constitution. The SMA is violative of Article 14 of the Constitution because it denies LGBTQIA+ persons equal protection of the laws. It is manifestly arbitrary to exclude LGBTQIA+ persons from the SMA. There is no constitutionally valid, intelligible differentia between LGBTQIA+ and non-LGBTQIA+ persons, There is no ‘legitimate state interest’ promoted or safeguarded by denying LGBTQ+ individuals the fundamental right of marriage. Recognizing the right of LGBTQIA+ couples to marry upholds constitutional morality, Every person is entitled to marry someone of their choice, Denying LGBTQ+ individuals the right to marry inflicts personal harm on them and also inflicts a significant economic cost on the country, Denial of the right to marry amounts to a deprivation of the entitlement to full citizenship as well as a denial of the right to intimacy. The Constitution is a living document and ought to adapt to changing social realities. If a statute appears to violate the Constitution, then this Court may either declare it unconstitutional, or read it expansively to save its constitutionality. Matrimonial as well as other statutes can be read in a gender-neutral manner to include LGBTQIA+ couples within their ambit. The SMA ought to be read in a gender-neutral manner. Gendered terms such as “husband” and “wife” ought to be read as “spouse.”

Arguments on behalf of counsel for respondent: Mr. R. Venkataramani

It is submitted that at the time when the SMA was enacted, an alternative conception of a union of persons (other than heterosexuals) did not exist. The SMA is intended to regulate marriage between heterosexuals irrespective of caste and religion. Thus, the omission of non-heterosexual unions from the purview of the enactment would not render the enactment unconstitutional because of under-inclusiveness. The SMA will be underinclusive only when a class of heterosexuals is excluded by the statute; There would be no internal cohesion in the SMA if Section 4 is read in a gender-neutral manner. Such an interpretation would render the implementation of Sections 19 to 21A which link the SMA with other personal and non-personal laws difficult. Courts can use the interpretative tool of reading-in only when the stated purpose of the law is not achieved. Since the purpose of SMA is to regulate heterosexual marriages, this Court cannot read words into the enactment to expand its purview beyond what was originally conceptualized. It is up to Parliament to enact a special code regulating non-heterosexual unions and the specific issues that such unions would face during and after the partnership, after comprehensively engaging with all stakeholders. Marriage rights must be given only through the parliamentary process after wide consultation. A declaration by this Court granting legal recognition to non-heterosexual marriages accompanied with a scheme of rights would be anathema to separation of powers. This Court must not venture into the realm of policy making and law making.

Held: The Supreme court by a 3:2 ratio ruled against the recognition of same sex marriages. Thе minority pеrspеctivе notеd that еvеn though thеrе is no еxplicitly statеd fundamеntal right to marry,  thеrе еxists a right or frееdom to еngagе in a union.  In contrast,  thе majority stancе assеrtеd thе prеsеncе of a spеcific right,  namеly thе ‘right to rеlationship, ‘ which is еncompassеd within Articlе 21 of thе Constitution. Justicе Bhat,  in his majority view supportеd by Justicе Kohli,  also еndorsеd this pеrspеctivе,  rеjеcting thе notion that thе right to marry automatically arisеs from thе provisions of Part III as assеrtеd by thе pеtitionеr.  Justicе Bhat еmphasizеd that an unqualifiеd right to marry cannot bе assеrtеd as a fundamеntal frееdom.  Justicеs Kaul and Narasimha,  in thеir sеparatе opinions,  fully agrееd with this viеwpoint as wеll.

The CJI in his minority view observed that, “Queerness is a natural phenomenon known to India since ancient times. It is not urban or elite. There is no universal conception of the institution of marriage, nor is it static. Under Articles 245 and 246 of the Constitution read with Entry 5 of List III to the Seventh Schedule, it lies within the domain of Parliament and the state legislatures to enact laws recognizing and regulating queer marriage. An institution cannot be elevated to the realm of a fundamental right based on the content accorded to it by law. However, several facets of the marital relationship are reflections of constitutional values including the right to human dignity and the right to life and personal liberty. This Court cannot either strike down the constitutional validity of SMA or read words into the SMA because of its institutional limitations. This Court cannot read words into the provisions of the SMA and provisions of other allied laws such as the ISA and the HSA because that would amount to judicial legislation. The Court in the exercise of the power of judicial review must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain. Transgender persons in heterosexual relationships have the right to marry under existing law including personal laws which regulate marriage. Inter sex persons who identify as either male or female have the right to marry under existing law including personal laws which regulate marriage. Unmarried couples (including queer couples) can jointly adopt a child. The CARA Circular disproportionately impacts the queer community and is violative of Article 15…”, and thereby directed the Union Government to 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.