SUPRIYO V. UNION OF INDIA

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1 year ago

The Supreme Court on 17 October, 2023, has refused to grant legal recognition for queer marriages in India by saying that it is a matter for the legislature to decide. However, all the judges of the bench have agreed that the Union of India, as per its earlier statement, shall constitute a committee to examine the rights and entitlements of persons in queer union, without giving them legal recognition of their relationship in the form of “marriage”.

The Court unanimously held that queer couples have a right to cohabit without any danger or threat of violence, coercion of interference, forced separation: but has refrained from passing any directions to formally recognize such relationship as marriages. The Supreme Court Constitutional bench pronounced four judgements written by DY Chandrachud (The Chief Justice of India), Justice SK Kaul, Justice Ravindra Bhat and PS Narasimha respectively.

BACKGROUND

The batch consisted of total 20 petitions filed by same sex couples, transgenders and LGBTQIA+ activists. These petitions were collectively challenged the provisions of the Special Marriage Act, 1954, Hindu Marriage Act, 1955, and the Foreign Marriage Act, 1969 as these Acts do not have any provisions regarding the marriage of same-sex couples. They contended that these legislations, in their current form, do not recognize homosexual couples marriages, thus perpetuating discrimination against the LGBTQ+ community.

During proceedings, the bench had cleared that they will not touch personal laws and it will confine the challenge only to the Special Marriage Act. Thus, the challenge considering the Hindu Marriage Act was not taken up. During the course of hearings, the Union Government had expressed their willingness to constitute a committee in order to examine that whether certain legal rights could be granted to queer couples, without granting any legal recognition to their relationship as a “Marriage”. This step of Union Government was in response to a question raised by the Court that if certain executive instructions could be issued to ensure that same-sex and queer couples have access to some welfare measures and social security- such as permission regarding opening of joint bank-accounts, PF, pension, to name partner as nominee in life insurance policies etc.

KEY ISSUES:-

Do members of the LGBTQ+ Community or same sex couples have a right to marriage?
If the LGBTQ+ community members have a right to marry, can SC make a declaration to this effect?
Whether the exclusion of LGBTQ+ marriages under the Special Marriage Act, 1954, is discriminatory under Article 14 or not?

LEGALITY OF SAME SEX MARRIAGES IN INDIA

The right to marry is not explicitly declared as a fundamental or constitutional right under Indian Constitution but a statutory right. Though marriage has been regulated by many statutory enactments but it developed as a fundamental right through India’s Supreme Court. Such declaration is binding on all the courts of India under Article 141 of the Constitution.

In Shafin Jahan v. Asokan K.M. and others, 2018, While referring to Article 16 of the Universal Declaration of Human Right, the SC held that the right to marry a person of one’s own choice is fundamental part of Article 21 of the Constitution. Further, it held that right to marry comes under the liberty which the constitution guarantees as a fundamental right.

In Navjet Singh Johar and others v. Union of India, SC while decriminalizing Article 377 of the Constitution held that the LGBTQ+ community is entitled to all the Constitutional Rights as all other citizens to the full range including the liberties protected by the Constitution and also entitled to equal protection laws and equality.

OBSERVATION

The 5Judge bench was constituted to hear this case. Among 5 Judges, Justice Hima Kohli, Justice S.R. Bhat, Justice P.S. Narasimha were against the legal recognition of the relationship of queer couples, while CJI and Justice S.K Kaul were in the favour of the same. However, all 5 Judges were agreed on the fact that Right to Marriage is not a Fundamental Right in India and there is no law which give this right other than the Parliament. Only Parliament can make laws on this.

According to CJI DY Chandrachud, in his judgement, he stated that same sex couples have a right to seek legal recognition of their union in the form of marriage. Furthermore, he also stated that the freedom of queer community to enter into union is guaranteed under our Constitution. However, he held that the Court cannot strike down the provisions of the Special Marriage Act as the same falls within the domain of the legislature and Parliament.

CJI directs the Centre some guidelines:-
To ensure that queer community is not discriminated against
To make sure that there is no discrimination with regards to goods and services
Sensitise and make public aware about queer rights
Create a hotline for Queer Community
Create safe and secure house for queer couple
To make sure that inter-sex children are not forced to undergo operations and any hormonal therapy

CJI held the Regulation 5(3) of the CARA regulations (a government agency that lays down rules regarding adoption of children in India) invalid as it violates the Article 15 of the Constitution and held that unmarried couples including queer couples can jointly adopt a child. He also held that transgender people in heterosexual relationships have right to marry under existing laws including personal laws as well.

Justice SK Kaul agreed with the judgement of CJI and held the Special Marriage Act discriminatory for being violative of Article 14 of the Constitution, while stating that queer unions are to be recognized as a union in order to give partnership and love.

However, on concurring with CJI, he also held that there were limitations on the court to decide the provisions of Special Marriage Act as the same falls within the purview of parliament. IF the appellants wants their civil rights to marry, they should approach parliament to make new legislation in this matter which will further put new rights and obligations.

Justice S Ravindra Bhat has differed from the judgement of the CJI and stated that the entitlement to civil union could only be through enacted laws. It should be in accordance with the legislation. However, he agreed with the statement recorded to the court by the Solicitor General, Justice Bhat has also concluded that the union is required to set up high powered committee in order to examine the rights and benefit related to queer couples. He further answered the question raised that if court can decriminalize Article 377, then why it cannot made the provisions for queer couples. He answered in his judgement that earlier, the court’s intervention was in instances where Court protected the rights of queer persons from violence and discrimination based on State’s duty to protect citizen’s rights. However, the present matter is not the same. He further stated that the present case was not the one where the Supreme Court could require the State to create legal status for queer couples. He further held that court could not create a legal framework as the legislature is there for the same pertaining to policy to be taken into consideration. However, he restated that queer couples had a right to relationhips but not had a right to consider their union as legal. In his judgement, Justice Bhat held that All queer persons have right to choose their partners but the State is not obliged to recognized the bouquet of rights occurs from such union. He disagrees with CJI on this point. Further, he stated that a gender neutral interpretation of the Special Marriage Act may not be equitable and could result in women being exposed to susceptibility in an unintended manner. While recognizing denial the benefits such as PF, Pension etc. to queer couples may cause an adverse and discriminatory effect, thus Justic Bhat stated that a high powered committee shall be constituted who examine all these rights and entitlements to queer partners. Justice Bhat agreed with the CJI on the right of transgender persons who are in the heterosexual relationships to marry as per the existing laws including personal laws. However, he disagreed with the CJI on the point where CJI declared the regulation 5(3) of CARA guidelines as unconstitutional and gave right to joint adoption to queer couples. As per Justice Bhat, the regulation is constitutional and queer couples had no right to jointly adopt a child. Justice Hima Kohli agreed with the judgement of Justice Bhat and did not give a separate judgement.

Further, Justice PS Narsimha on agreeing with Justice Bhat stated that there is no existence of unqualified right to marry and right to marriage is a statutory right, flowing from a custom. He further held that it would not be constitutionally permissible to recognize a right to civil union mirroring a marriage. He agreed with Justice Bhat on the matter that the Cara regulations could not be held as unconstitutional. Justice PS Narsimha stated that a legislation shall review their schemes which discriminates queer couples from pension, PF, gratuity, insurance, having joint bank accounts etc.

WAY FORWARD

There are many ways to make sure that the LGBTQ+ community shall not be discriminated against. Some measures are as follows:-

Increase Awareness in order to promote equality and acceptance of all sexual orientation by the public. The purpose of these awareness campaigns is to elevate and expand the opinion of public about the LGBTQ+ community.
To bring reforms and amendments in the Special Marriage Act,1954 and enjoy the same rights as opposite sex couples do. The government should constitute a committee to ensure that whether proper benefits entitled to LGBTQ+ community are given or not.
The LGBTQ+ community can challenge the constitutionality of the current laws in the court preventing same sex marriage. These challenges can help in the establishment of legal precedent which paved the way for legislation of their union.

By working and coordinated together, we can create a more inclusive, adaptive and accommodative society where everyone has the right to love and marry whomever they want, irrespective of the gender.

Author:- Dolly Singh Gehlot, a Student of BM Law College