Case Analysis of Supriya Chakraborty v. Union of India

 

Author: Shalini Shukla, S.S. Khanna Girls’ Degree College a Constituent College of the University of Allahabad

Abstract:  In this article, I analyze the case Supriya Chakraborty v. Union of India it is a landmark case in which the Supreme Court of India declared that same-sex marriage is unconstitutional. The same-sex marriage did not get legal recognition. This case challenges the heteronormative framework of marriage under the Special Act, of 1954. It demands the inclusion of LGBTQ+ individuals in the institution of marriage, highlighting the principles of equality, dignity, and non-discrimination enshrined in the Indian Constitution. The petitioners, Supriya Chakraborty and Abhay Dang, a same-sex couple, argued that the denial of their right to marry violates their fundamental right under Article 14 equality before law), 19 (freedom of expression), and 21 (right to life and personal liberty) of the Constitution of India. They contended that the exclusion of same-sex couples from legal marriage perpetuates societal stigma and deprives them of legal benefits available to heterosexual couples, such as inheritance rights, and spousal benefits. This case, therefore, is about how this existing legal regime may be interpreted in a non-discriminatory, constitution-compliant manner. This case highlights the tension between constitutional morality and societal norms in a rapidly evolving socio-legal landscape. 

Keywords: Same-sex marriage, Constitutional rights, LGBTQ+, Special Marriage Act,1954. 

Details of the case: 

• Name of the case:  Supriya Chakraborty & Another v. Union of India, 2023, SC.
• Parties to the case:  Supriya Chakraborty & Another………Petitioner

Union of India…………Respondent

• Court:  Supreme Court of India.
• Judges:  Dr. D.Y. Chandrachud, C.J. and Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha, JJ. 
• Advocates from Petitioner sides:  Mukul Rohatgi Sr. Advocate, Abhishek Manu Singhvi Sr. Advocate, Raju Ramachandran Sr. Advocate, K.V. Viswanathan Sr. Advocate, Geeta Luthra Sr. Advocate, Anand Grover Sr. Advocate, Jayna Kothari Sr. Advocate, Menaka Guruswamy Sr. Advocate, Saurabh Kirpal Sr. Advocate, Vrinda Grover, Karuna Nundy, Arundhati Katju, Raghav Awasthi, Namit Saxena.
• Advocates from Respondent sides: Tushar Mehta, Solicitor General, R. Venkataramani, Attorney General; Rakesh Dwivedi, Sr. Adv; Kapil Sibal, Sr. Adv 
• Date of Judgement:  17, October 2023. 
• Equivalent citations:   2023 SCC Online, SC 1348.

• Facts of the case:  

Mr. Supriyo Chakraborty and Mr. Abhay Dang are gay men and citizens of India. 

Petitioners are 32 and 35 years old, and have been in a committed relationship for almost a 

decade.  Petitioners live together in Hyderabad, Telangana. 

The pandemic brought the frailty of life home to both partners and their families. They 

both got COVID during the second wave but Supriyo was much worse; Abhay had to look 

desperately for oxygen and rush Supriyo to the ER while taking care of himself. Although they had always discussed getting married someday in the future, the pandemic accelerated this conversation. Petitioners felt that they needed a little more than love, and wished for the security that marriage brought along. They decided to have a wedding-cum-commitment ceremony on their 9th anniversary to celebrate their relationship with all their loved ones.

On 17-18 December 2021, Supriyo and Abhay held a commitment ceremony to 

commemorate their relationship, with the blessings of their families and friends. The 

ceremony meant as much to their parents as it did to them. In true Bengali fashion, Supriyo’s 

mother performed the boron ritual for Abhay and welcomed him into their family as she would her son’s bride.

Unfortunately, after the euphoria of the ceremony has worn off, Petitioners are faced with 

a cold reality of their lives. Despite being a couple for over a decade, calling their parents 

mummy-papa and maa-baba and going on holidays with them, having bought a home and 

built a life together, Supriyo and Abhay’s relationship is still legally as fragile as it was during the dark days of the pandemic. They do not enjoy any of the rights that married couples do, even though this Hon’ble Court has time and again declared that all adults have the right to marry a person of their choice.

The writ petition being filed by the two same-sex couples at the Supreme Court on November 14th 2022 seeking legal recognition of same-sex marriages in India. Supriyo Chakraborty and Abhay Dang were the first petitioners for the case. The petitioners challenged the validity of Section 4 (c) of the Special Marriage Act, 1954 on the ground that the provision discriminates against same-sex couples by denying them benefits such as adoption, surrogacy, employment, and retirement benefits. The Supreme Court transferred similar petitions to itself which were pending before High Courts. These other Petitions challenged the enactments including the Hindu Marriage Act, 1955 and the Foreign Marriage Act, 1969. On March 13th, 2023, a 3-Judge Bench led by CJI D.Y. Chandrachud referred the case to a 5-Judge Constitution Bench. On May 11th, 2023, the 5-Judge Bench reserved judgment after 10 days of hearings. On October 17th, 2023, the 5-Judge Bench pronounced its verdict on petitions seeking marriage equality for LGBTQIA+ persons.

Issues of the case: 

• Do members of the LGBTQIA+ community have a right to marriage?
• Does the non-inclusion of LGBTQIA+ marriages under the Special Marriage Act, of 1954, amount to discrimination under Article 14?
• If members of the LGBTQIA+ community have a right to marry, can the SC make a declaration to this effect?

• Contentions of the Petitioner:

The petitioner argued that the “right to marry” should be considered a fundamental right under the Indian Constitution. The petitioner further argues that they do not merely seek a declaration of their right to marry, but an interpretation of the Special Marriage Act that would allow for the solemnization and /or registration of non-heterosexual marriages. The reason for this is that marriage is not an abstract concept but a concrete social institution that is valuable to both in its own right and as a gateway to other rights. What the petitioner seeks is a right to access, on equal terms, this social institution. 

The petitioner argued that certain provisions of the SMA, as implemented thus far, prevent solemnization and/or registration of non-heterosexual marriages. It is submitted that this is not an instance of ‘under-inclusive’ classification; rather, since the grounds for exclusion/non-inclusion in the SMA are ascriptive characteristics that amount to prohibited markers under Article 15, the issue is one of non-discrimination (akin to historical examples of exclusion of women from the vote as also the exclusion of women from the industrial workplace/factories). However, the SMA admits to a constitutionally compliant interpretation, by virtue of which the Act can be read as authorizing the solemnization and/or registration of non-heterosexual marriages. 

Petitioner also argued that the exclusion of same-sex couples from the SMA constitutes direct discrimination under Article 15(1) of the Constitution, on the grounds of sexual orientation, and is, therefore, ex-facie unconstitutional. It violates the freedom of speech under Article 19(1) and the right to privacy and dignity under Article 21 of the Constitution. Petitioner contended that the Special Marriage Act (SMA) violated the right to equality (Article 14 of the Constitution) as it failed to recognize the non-heteronormative marriages. 

It was sought by the Petitioners that if the Court finds that a provision is contrary to Part III of the Constitution, (1) it shall declare that it is void, or (2) read it down (by deleting phrases) or read words in (by adding or substituting phrases) to save it from being declared void.

• Contentions of the Respondent: 

The respondent argued that the discrimination is not only on the grounds of sex is untenable. The “sexual orientation” has been read into “sex”, The respondent also defined marriage to mean a union between one man and one woman, it is – ipso facto – discrimination on grounds only of sexual orientation. Regulating same-sex marriages shall violate all other present legislations regarding marriages. The Constitution of India does not specifically recognize the right to marry as a fundamental right. Article 21 only recognizes the right to choose a partner. 

Respondent also argued that the Special Marriage Act was designed for heterosexual couples only, and legalizing same-sex marriage would require significant legislative changes, potentially impacting numerous laws, while also arguing that the judiciary should not intervene to create a new “socio-legal status of marriage” for LGBTQIA+ individuals, leaving it to Parliament to decide on such matters. 

The Respondents’ primary objection to these proceedings, is that the regulation of marriage is within the legislative competence of the Parliament and that this Hon’ble Court ought not to enter into an exercise that would amount to “legislating”.

• Judgment: 

The Supreme Court of India delivered a 3:2 judgment, meaning that the majority of the bench (three judges i.e. S. Ravindra Bhat, PS Narasimha, Hima Kohli) ruled against recognizing same-sex marriage, while two judges dissented (CJI Dr. D.Y. Chandrachud, and Sanjay Kisan Kaul) in favor of it. All 5 judges unanimously held that there is no fundamental right to marry.   

CJI Dr. D.Y. Chandrachud said “The Constitution does not expressly recognize a fundamental right to marry. 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.”

The CJI Chandrachud held that decisional autonomy and dignity of the individual are essential to the protection of privacy. In holding so, the Court observed that “family, marriage, procreation and sexual orientation are all integral to the dignity of the individual.” The Court further held that “freedom of self-determination”, as a facet of Article 19, is also intrinsic to the right to dignity.

SK Kaul, J. concurring with the opinions of Chandrachud and Nariman, JJ. held that sexual orientation is “undoubtedly an attribute of privacy.” 

If the SMA is held void for excluding same-sex couples, it would take India back to the pre-independence era were two persons of different religions and caste were unable to celebrate love in the form of marriage. Such a judicial verdict would not only have the effect of taking the nation back to the era when it was clothed in social inequality and religious intolerance but would also push Article 13 of the Constitution courts to choose between eradicating one form of discrimination and prejudice at the cost of permitting another. If this Court takes the second approach and reads words into the provisions of the SMA and provisions of other allied laws such as the ISA and HSA, it would in effect be entering into the realm of the legislature.”

Justice Bhat agreed and said that the exclusion of non-heterosexual couples from the fold of SMA cannot be held to have resulted in its ceasing to have any rationale, and thus becoming discriminatory in operation.

“Gender neutral interpretation of existing laws, therefore, would complicate an already exhausting path to justice for women and leave room for the perpetrator to victimise them. A law is not merely meant to look good on paper; but is an effective tool to remedy a perceived injustice, addressed after due evaluation about its necessity. A law which was consciously created and fought for, by women cannot, therefore, by an interpretive sleight be diluted.”

All judges agreed that it was a matter impinging on policy and hence, the Court in the exercise of the power of judicial review must steer clear of such matters which fall in the legislative domain.

Minority View:

CJI Chandrachud and Kaul, J held that the word “sex” in Article 15 of the Constitution includes within its fold other markers of identity which are related to sex and gender such as “sexual orientation”. Thus, a restriction on the right to enter into a union based on sexual orientation would violate Article 15 of the Constitution.

Kaul J. observed that the legal recognition of non-heterosexual unions can challenge culturally ordained gender roles even in heterosexual relationships as in such a union, both partners are not limited by extant gender norms to shape their relationship, including the division of labour. Further, the legal recognition will aid social acceptance, which in turn increases queer participation in public spaces. 

• Ratio decidendi: 

The court said that legalizing same-sex marriage is a legislative matter for Parliament, not the judiciary, emphasizing the separation of powers and institutional limitations.

• Obiter dicta:

Supreme Court observed that while queer and LGBTQ+ couples have the right to form unions under Article 21, this does not extend to a right to claim entitlement to any legal status for the said union or relationship.

• Case law referred by the Supreme Court in this case:

In his concurring opinion in K.S. Puttaswamy, Justice v. UOI, 2017, SC, (9 judges bench) R.F. Nariman held that the right to privacy includes protecting individual interests in making “vital personal choices”, such as “the rights of same-sex couples-including the right to m

arry”.  Hence, the right of LGBTQ couples to marry has already been recognized by a nine-judge bench of this Hon’ble Court.

• Conclusion: 

The Supreme Court of India, in its landmark judgment on same-sex marriage (Supriyo @ Supriya Chakraborty v. Union of India), I concluded that while LGBTQ+ individuals have the right to form unions and relationships under constitutional protections of dignity, equality, and privacy, the legal recognition of same-sex marriage is a legislative matter. The Court refrained from redefining the term “marriage” under existing laws and urged the government to consider granting certain rights and benefits to same-sex couples through a framework that respects their fundamental rights and ensures inclusivity.

• FAQs: 

1. Did the Supreme Court legalize same-sex marriage in India?

No, the Supreme Court did not legalize same-sex marriage. The Court acknowledged the rights of LGBTQ+ individuals to form unions and relationships but did not grant them legal recognition of marriage under Indian law.

2. What rights were recognized for same-sex couples?

The Court affirmed that LGBTQ+ individuals have the right to form unions and enjoy dignity, autonomy, and non-discrimination under Article 21 of the Constitution. However, this does not extend to legal entitlements like marriage or adoption rights.

3. Did the Court recommend any action for the government?

Yes, the Court urged the government to form a committee to explore the rights and benefits that could be granted to same-sex couples, such as health benefits, inheritance rights, and joint financial entitlements.

• References:

• https://indiankanoon.org/doc/129202312/ 
• https://www.scobserver.in/cases/plea-for-marriage-equality/ 
• https://articles.manupatra.com/article-details/Legal-Progression-Social-Implications-Case-Comment-on-Supriyo-Chakraborty-Anr-v-Union-Of-India 
• https://www.advocatekhoj.com/library/judgments/announcement.php?WID=16883