FACTS OF THE CASE:
On November 14, 2022, same-sex couples submitted two petitions to have same-sex marriages recognized legally in India. These petitions cited certain clauses from the Special Marriage Act of 1954 and its ensuing legality. The two petitions were submitted by Supriyo Chakraborty and Abhay Dang in the first instance and Parth Phiroze Merhotra and Uday Raj Anand in the second.
It is essential to review the Supreme Court’s ruling in the Navtej Singh Johar and Ors. v. Union of India case in order to comprehend this one. In the Navtej Singh Johar case, Section 377 of the Indian Penal Code, 1860 was ruled to be unconstitutional. However, the declaration of unconstitutionality was limited to unions formed with consent between two individuals of the same sex. The Supreme Court ruled that Section 377, which had previously made it illegal for two people of the same sex to engage in sexual activity against the natural order, was unconstitutional, prioritizing an individual’s rights. Section 377 alone was violating the fundamental rights protected by Articles 14, 15, and 19 of the Indian Constitution. Therefore, this ruling was the first to open the door to a secure future for the
LGBT community.
Since then, however, a great deal of petitions has been filed for the queer community to be granted a number of additional rights. One of the most important rights for which several petitions have been submitted to various courts is the “right to marry,” which should be given to the LGBT community so that individuals of the same sex can legally get married.
The primary goal of the petitions has been to put an end to the “discrimination against the queer community,” which is practiced by keeping them apart from society and denying them access to fundamental rights that are commonly granted to the general population.
It was also argued that the court had to grant them the right to marry since it had already recognized the right to have sex and that same-sex relationships were non-heterosexual. This was done in order to allow the substance of that freedom to seep in.
The identical problem was at the heart of the current case. By noting the urgent need to address the violence and discrimination that these individuals confront and the necessity of permanently ending it, the Supreme Court took suo motu cognizance of the subject.
Twenty petitions seeking the same relief that had been filed in several High Courts were combined by the court. A five-judge Constitution bench was assigned to hear the issue because it was so important, and its primary goal was to determine whether same-sex weddings could be permitted in India.
ISSUES:
- Whether denying LGBT couples their basic right to marriage constitutes a breach of their right to privacy and dignity.
- Is there a Fundamental Right to marry?
- Do queer couples have right to marry?
- Is the Special Marriage Act, 1954 unconstitutional?
CONTENTIONS OF THE PETITIONER:
The petitioners contended that granting LGBTQIA+ people the right to marry was merely a follow-up to the Supreme Court’s approval of the right to dignity, equality, and privacy as part of the fundamental rights that must be guaranteed to them, and that it is not necessary to start a new discussion on the subject. Among the reasons why LGBTQIA+ people should be allowed to marry are the following, according to the petitioners:
- As guaranteed by Articles 19 and 21 of the Constitution, the right to liberty and freedom includes the freedom to marry whoever one chooses, and LGBTQIA+ people should be granted this privilege as well.
- By preventing marriages between individuals of the same sex, the Special Marriage Act of 1954 discriminates against a group of persons whose sexual orientation is different, violating these very rights and making it unlawful.
- There isn’t any clear “legitimate state interest” that can be claimed to have been protected by prohibiting same-sex marriage.
- In a manner, granting them this privilege upholds the country’s “constitutional morality.” This is true since our society ought to be inclusive and pluralistic, as stated in constitutional morals. Because the Constitution is a living document, it must be revised periodically to reflect current events and societal shifts.
- It was also mentioned that if the Special Marriages Act, 1954 is read in consonance with the Indian Constitution, it would be deduced that same-sex weddings are rather allowed by it already. This is demonstrable as S.2 (b) of the Act defines “man” and “woman” to include any individual.
CONTENTIONS OF THE RESPONDENT:
The following is a quick summary of the arguments offered by the respondents in opposition to the petitioners, which have been condensed to help grasp their main points:
1. The Special Marriage Act of 1954 is a type of ordinary marriage legislation rather than a separate law. Since “procreation” is a key component of marriage and cannot occur in a non-heterosexual partnership, it cannot be considered a marriage in the first place.
2. Since non-heterosexual unions did not exist at the time the Special Marriage Act of 1954 was created, it is impossible to argue that the law attempted to exclude something that did not even exist at the time it was created, hence raising no doubts about its unconstitutionality.
3. Courts cannot intervene in the realm of policy-making and grant non-heterosexual couples the right to marry. In the first place, the court would create laws, and in the second place, even if it were permitted, many laws would be redesigned.
4. Another crucial debate concerns whether the constitution implicitly protects the right to marry. While it may be true that Article 19 protects a person’s sexual orientation, no article under the constitution’s list of fundamental rights for citizens explicitly protects the right to marry or form union.
5. It was also suggested that the State only considers ties in which it has an interest because it is under no duty to recognize all kinds of relationships. One could argue that heterosexual partnerships are essential to society’s survival.
RATIONALE:
Several legal and constitutional precepts served as the foundation for the Supreme Court’s decision in the Supriyo @ Supriya Chakraborty & Anr. v. Union of India (2023) case. The Court ruled that the right to marry is a statutory right, which means it is regulated by certain laws like the Hindu Marriage Act, the Muslim Personal Law, and the Special Marriage Act, 1954, rather than a fundamental right under the Indian Constitution. Any changes to allow same-sex marriages must be made by legislation rather than the courts because marriage is governed by laws passed by Parliament. The Court underlined the importance of the separation of powers by declaring that although it can interpret laws, the legislature is ultimately responsible for making and changing laws. One of the main points of contention in the case was whether same-sex marriages might be permitted under the Special Marriage Act of 1954 if it were interpreted in a gender-neutral way. The government said that the statute was solely meant for heterosexual weddings and should not be read outside of its original parameters, while the petitioners maintained that the Act did not expressly forbid such partnerships. The Court accepted the government’s position, holding that same-sex weddings were not intended to be covered by the Act and that additional laws would be needed to do so. The Court also considered the social and cultural components of Indian marriage, pointing out that it is firmly anchored in tradition and that any modifications to the country’s marriage rules must be gradual and grounded in widespread social agreement.
The Court cited other rulings that had decriminalized homosexuality and supported the rights of LGBTQIA+ people, such as the Navtej Singh Johar case (2018). However, it made clear that while marriage is a statutory issue, decriminalizing same-sex partnerships is a matter of fundamental rights. A lot of nations that have legalized same-sex marriage done so via legislation rather than court decisions, the Court added. In the end, the ruling stressed that the legislature bears the responsibility of recognizing and safeguarding LGBTQIA+ partnerships, but it did not legalize same-sex marriage. This decision was a landmark in Indian legal history since it upheld the rights and dignity of LGBTQIA+ people while also acknowledging the boundaries of judicial involvement in legislative processes.
DEFECTS OF THE LAW:
The Supreme Court’s decision in this case brought to light a number of flaws and exceptions in Indian law pertaining to the acceptance of same-sex partnerships. Citing the shortcomings of current legal frameworks, the Court eventually declined to grant LGBTQIA+ people marital rights, despite acknowledging their rights and dignity. The main legal flaws and deficiencies revealed by this case are listed below:
1. The lack of explicit legal recognition for homosexual partnerships:
The fact that same-sex relationships are not recognized by Indian law is one of its biggest shortcomings. There is no analogous law for gays, but heterosexuals have a number of legal choices for starting a partnership, such as the Hindu Marriage Act, Muslim Personal Law, and Special Marriage Act. Due to the lack of recognition of their partnerships, LGBTQIA+ people are placed in a legal limbo that leads to discrimination in inheritance, property rights, taxes, and even medical decisions.
2. The inability of the Special Marriage Act to adapt to shifting social norms:
The purpose of the Special Marriage Act of 1954 was to remove religious barriers to marriage between castes and religions. Its form and language, however, subtly presume heterosexual partnerships. The Court decided that same-sex weddings were not intended to be covered by the Act, notwithstanding the petitioners’ argument that it may be interpreted in a gender-neutral way. This highlights a flaw in the law since it hasn’t changed to reflect contemporary social shifts and the growing acceptance of LGBTQIA+ rights.
3. The Constitution does not guarantee the right to marry:
Unlike those countries where marriage is explicitly recognized as a fundamental right, India lacks a constitutional clause that explicitly protects the freedom to wed the person of one’s choosing. Although the Court has previously ruled that Article 21 (Right to Life and Liberty) protects human autonomy and dignity, it chose not to apply this logic to same-sex marriage. Because of this legal loophole, the government can deny certain people the right to marry, making marriage a privilege rather than a shared right.
4. An excessive dependence on legislative action by the judiciary:
The Court ruled that Parliament, not the courts, must acknowledge the problem of same-sex marriage. This shows a weakness in the judicial protection of fundamental rights, even though it supports the idea of separation of powers. When the legislature has failed to act in the area of individual liberty, courts have historically stepped in. For example, in the Navtej Singh Johar (2018) case, the court ruled that Section 377 of the IPC was unconstitutional. LGBTQIA+ people are left without quick legal remedy because the Court chose to leave this decision entirely up to Parliament.
INFERENCE:
In India’s legal history regarding same-sex marriage, the Supreme Court’s ruling in this case marked a significant turning point. Despite acknowledging the rights and dignity of LGBTQIA+ individuals, the Court ultimately decided against granting them the right to marry due to legal restrictions and the belief that Parliament, not the courts, should enact such laws. The Court ruled that marriage is a statutory right rather than a fundamental one, meaning that legislation like as the Muslim Personal Law, the Hindu Marriage Act, and the Special Marriage Act, which were all passed for heterosexual couples, control it.
The decision also highlights the contradictions in India’s stance on LGBTQIA+ rights. It has not given same-sex couples full legal protections, despite the judiciary’s prior support of equality, privacy, and dignity. LGBTQIA+ people can be free, but they are nonetheless denied the fundamental legal rights associated with marriage because of this limitation.
Another crucial lesson is the judiciary’s prudence when formulating policy. In this case, the Court did not read the Special Marriage Act in a gender-neutral manner, in contrast to earlier major rulings where it actively expanded fundamental rights. Despite showing respect for the separation of powers, this delays necessary legal changes, making LGBTQIA+ people dependent on legislation to be recognized and treated equally.
In conclusion, the decision confirms that legal changes are required to guarantee equal rights for same-sex couples in marriage and in their families. It also serves as a reminder of the ongoing systematic prejudice LGBTQIA+ people face. Even if the ruling recognizes their predicament, it falls short of providing them complete equality, guaranteeing that the campaign to legalize same-sex unions in India would continue in both the legal and social spheres.
ANJALI PRIYA
PRESIDENCY UNIVERSITY, BANGALORE