By Khushi Sheoran

Abstract

Supriyo v. Union of India (2023) addresses the freedom of marriage for LGBTQIA+ people in India. The Supreme Court heard cases requesting that same-sex marriage be recognized under constitutional protections after homosexuality was decriminalized. By a vote of 3:2, the Court rejected this right, recognizing the legitimacy of queerness and the court’s jurisdiction to consider the matter while yielding to the legislation. The decision underscores the difficulties in expanding marriage rights and the continued obstacles and limited advancements in LGBTQIA+ rights in India. This case note of the landmark judgment Supriyo v. Union of India aims to analyze the different views expressed in the lengthy judgment and pave the way for the future of LGBTQIA+ Rights in India. 

INTRODUCTION & BACKGROUND

“Only thirty-four of the one hundred and ninety-four countries have recognised marriage between non-heterosexual individuals. Out of the thirty-four countries, the legislature has recognized it in twenty-four of them.”  

The case of Supriyo versus Union of India is a 2022 case shedding light on the issue of the “right to marry” for homosexual couples in India. The pathbreaking judgment of Navtej Singh Johar versus Union of India decriminalized Section 377 of the IPC which earlier considered sex between homosexuals as “against the order of nature” where the court observed that “order of nature is not constant but is guided by social morality as opposed to constitutional values.” After this huge victory, certain people approached various High Courts of India demanding a right to marriage for the LGBTQIA+ Community.  

The Supreme Court then, took Suo motto cognizance of the matter clubbing 20 petitions to address this issue. The Supreme Court considered the violence faced by the LGBTQIA+ community despite the decriminalization of homosexuality. They face both direct and indirect discrimination from not securing promotions as in the famous case of Advocate Saurabh Kirpal to dropping out of school as revealed by NHRC where 75% of transgenders dropped out in NCR before 10^th grade. The Right to Marry will also give them corresponding rights like the right of conjointly owning property, intestate inheritance of property, giving consent for medical procedures etc. Articles 14,15,19 & 21 of the Indian Constitution were greatly questioned in the context of the “Right to Marry” in this case. Ultimately in a 3:2 judgment, the court did not grant a right to marry to the LGBTQIA+ Community and shifted the onus on the legislature. 

ISSUES

Q1. Whether there is a right to marry a person of their choice, including LGBTQIA+ persons under Articles 14, 15, 19 and 21 of the Constitution?

Q2. Whether the Court is vested with the authority to hear this case under Article 32 and has the power to issue directions, orders, or writs for the enforcement of the rights in Part III?

Q3. Whether Special Marriage Act & Foreign Marriage Act are violative of Articles 14, 15 & 21 of the Indian Constitution?

ARGUMENTS 

The petitioner’s arguments were given by 21 learned advocates mainly Mr Mukul Rohatgi, Dr A.M. Singhvi, Ms Geetha Luthra, Mr Saurabh Kirpal and many others. Whereas, the respondent’s arguments were given by 17 esteemed advocates mainly – Mr Tushar Mehta, Mr Kapil Sibal, Ms Aishwarya Bhati, Ms Priya Aristotle and many others. 

1. FUNDAMENTAL RIGHTS

Petitioners raised valid points of Articles 19 and 21 that guarantee everyone, including LGBTQIA+ people, the right to marry and not having a legitimate distinction makes exclusion from the SMA a violation of Article 15. The Special Marriage Act (SMA) violates Article 21 by infringing the rights of LGBTQIA+ people. When reading SMA inclusively, gendered terms should be substituted with “spouse.” SMA restricts the rights of transgender individuals to have families which violates Article 21. Countering the petitioner’s point they said, SMA focuses on regulating interfaith and inter-caste unions of heterosexual couples not homosexuals. 

2. INTERPRETATIVE LIMIT OF COURTS

Where petitioners talked about the violation of fundamental rights, the respondents focused on the interpretative limits of the court. They contested that the courts can interpret statutes but not fundamentally alter them beyond legislative intent. Courts can provide procedural guidelines but cannot create substantive rights or direct legislative action. State regulations, including age limits, prohibitions against bigamy etc govern marriage. They established that granting legal recognition to non-heterosexual unions is a legislative prerogative, not a fundamental right.

3. INTEREST OF CHILDREN

The petitioners said that marital status and sexual orientation shall not be grounds for discrimination in joint adoption regulations. Central Adoption Resource Authority (CARA) Circulars restricting same-sex couples from adoption exceed the Juvenile Justice Act‘s scope.

Whereas the respondents argued that the concern regarding the interests of children raised by non-heterosexual parents hasn’t been substantiated by the petitioners and differentiation in adoption laws persists.

4. OTHER ARGUMENTS

The petitioners pointed out that marriage emphasizes the unity of souls and transcends procreation. To this, the respondent argued that legal provisions, such as Section 112 of the Indian Evidence Act, emphasize procreation within marriage. 

Petitioners put forth that non-discriminatory marriage laws are required for India’s adherence to international treaties. 

Finally, respondents argued that decriminalization of homosexuality doesn’t mandate legal recognition of non-heterosexual relationships and may alter societal marriage preferences. They emphasized the need for public engagement for legal changes, as seen in international examples.

4.     JUDGEMENT

The Supreme Court of India gave a 3:2 judgment denying the right to marry to the LGBTQIA+ Community. Out of the bench of 5 judges, Justice S.R Bhat, Justice Hima Kohli and Justice P.S. Narasimha gave the concurring opinion whereas Chief Justice of India D.Y. Chandrachud and Justice S.K. Kaul gave the dissenting opinion.   

The opinion by Justice S.R Bhat can be summarized as follows. The court underscores that marriage has no inherent right and must be recognized by legislation. Although they don’t have a legal right to celebrate commitments, queer people can honour them in society. The State needs to address the discriminatory effects on earned benefits for LGBTQIA+ couples. A powerful committee will look into pertinent elements. The rights of heterosexuals to cohabitate are uncontested. In heterosexual partnerships, transgender people can get married. Concerns about the queer community require in-depth research that is outside the purview of the court.

The dissenting opinion to this was stipulated by CJI D.Y. Chandrachud, establishing that the court maintains its authority to consider the matter under Article 32 of the constitution and accepts queerness as a natural state of being. It is evident from this that marriage is a dynamic institution that is governed by law and state recognition of a union brings about substantial advantages. The right to marry is protected in Part III of the constitution and discrimination based on sexual orientation is banned by Article 15. The CJI further asserted that unmarried couples can adopt together and that the CARA (Central Adoption Resource Authority) Circular is illegal. Queer couples rights will be defined by a committee which will guarantee extensive stakeholder participation.

Even though there’s a dissenting opinion, all the judges agree on certain issues–

1. The court has the power to hear this case and grant relief by issuing directions, orders, etc. for enforcement of the rights of the LGBTQIA+ Community under the constitution.
2. Queerness is not an urban or elite concept.
3. It is neither unlawful nor possible to construe the Special Marriage Act, of 1956 in a way that would permit marriage between LGBT people. 
4. Under current personal laws, transgender individuals in heterosexual partnerships are entitled to solemnize marriages.

5.     ANALYSIS

The very beginning of the judgment shows the lack of clarity and empathy for the LGBTQIA+ community where it says that “the terms LGBTQ and queer are used interchangeably.” The terms are very different in their nature and usage where Queer just stands for ‘Q’ in the broader term of LGBTQ. There is also the use of other objectionable terms in the arguments given by the parties where terms like “gender non-conforming” are used to describe people of the LGBTQ Community. They are not “gender non-conforming” just because their gender is not male or female; their gender has existed since ancient times in India. They also have a right to self-identify their gender, hence, the usage of terms like “gender non-conforming” is not right, especially in such a landmark case law. 

Considering that both sides, in this case, have given enough opinions on whether granting a right to marry for the LGBTQIA+ Community passes the “intelligible difference” and “rationale nexus” test under Article 14 of the Constitution, I would like to tackle other issues like the change in personal laws if they are granted such right. If homosexuals are granted the right to marry, there will be a lot of changes which are to be made to personal laws like the Hindu Marriage Act, Special Marriage Act, Foreign Marriage Act and Citizenship Act among others. Although, the judiciary can read into the provisions of SMA & FMA to include a gender-neutral understanding of the terms instead of bride, groom, mother, father etc. for other provisions like adoption, maintenance, and inheritance the intervention of the legislature is a must. As rightly said by Mr Arvind P Datar in his arguments, “The court while interpreting provisions of a statute can iron out the creases but not alter the fabric.” Such a constitutional right if granted, will lead to multiple changes across various statutes for a uniform and equal approach which might not be acceptable to some religions. This is where a Uniform Civil Code (UCC) could help as it is easy to implement a change in a single statute.  

What makes Justice Chandrachud’s judgment so relevant is the fact that he explicitly states that “Transgender persons in heterosexual relationships have the right to marry under existing law including personal laws which regulate marriage and Intersex persons who identify as either male or female have the right to marry under existing law including personal laws which regulate marriage”. This signs relief to at least a part of the LGBTQIA+ Community and also the whole community at large when he directs that the state must protect them from any coercion by their natal families, police or any other agency. The case of Arun Kumar v Union of India declared the marriage of a transwomen under HMA to be valid. If they can be included, so can people of other genders. 

One argument that struck me specifically the Respondent’s side is by Ms. Aishwarya Bhati, learned Additional Solicitor General who talks about adoption and the problems that adopted children can face if this right is granted. She points out the lack of evidence on the petitioner’s side “to prove that the interests of the child would be protected if they are raised by non-heterosexual parents”[24] Another important argument is the importance of public discourse when such a right is given, which is going to have subsequent impacts and legislative changes. I agree that the law doesn’t work on the opinion of the majority society but public engagement as done by other countries around the world as pointed out by Mr Kapil Sibal.

I believe the courts, legislature, and society are all just afraid of change and nothing else. Changes have always been made to the law to enhance inclusivity like the PWDA and many others, decisions are turned and then overturned as per the demand of the situation. The judiciary should promote inclusivity especially when our constitution provides a “right to equality.” The institution of marriage has already changed many times for the marriage age from 18 to 21 for all, abolition of sati, widow remarriage etc. I would like to conclude by stating the most effective line in a more than 300-page judgement – “There is no universal conception of marriage, Marriage is a voluntary union – of the mind, the body, and the soul.” 

Author’s Bio: 

Khushi Sheoran is a law student at Jindal Global Law School. She is a public speaker, environmentalist and international relations enthusiast. Her areas of interest include International Law, Constitutional Law, Gender & Sexuality, Corporate Law and ESG. 

Image Source: BBC