Marriage – an LGBTQIA+ perspective | Decoding the Supriyo Judgement on Right to Marry between same–sex partners

In continuation of our previous article on right to marry, we endeavour to summarize the relevant portions of the Hon’ble Supreme Court’s Judgement in Supriyo alias Supriya Chakraborty and Anr. v. Union of India, insofar as they relate to:

1. Legal recognition of marriage between non-heterosexual partners;

2. Fundamental right to marry for same-sex couples;

3. Constitutionality of the Special Marriage Act, 1954 (‘SMA’), viz. marriage for same-sex couples.

In short, the Supreme Court by way of judgement dated October 17, 2023, concluded that marriage is not a fundamental right, and the provisions of SMA and Foreign Marriage Act (‘FMA’) cannot be interpreted to include the marriage of non-heterosexual partners. The Supreme Court also observed that it does not have the power to enact laws owing to the separation of powers and that it is the duty of the legislature to amend/ enact laws.

The Court opined that there is no uniform definition of marriage - these vary based on law, religion, and culture. Further, the sole purpose of ‘marriage’ is not merely procreation or sexual relations but includes components of emotions and association. 

a) The Court referred to earlier decisions in Shafin Jahan, Shakti Vahini, Navtej and Justice KS Puttaswamy and observed as under:

(i) All the aforementioned decisions contain broad observations with respect to individuals’ choice of their partner as also a reference to non-conventional relationships. Since these are mere references, they cannot be treated as an unqualified right equivalent to fundamental freedoms;

(ii) While there is no express right to marry, there is a freedom to enter into a union (the Court has coined this as ‘right to relationship’ under Article 21) – which includes the right to choose a partner, cohabit and enjoy physical intimacy, to live the way they wish to, and other rights that flow from the right to privacy, autonomy and dignity (as a consequence to the Court’s decision in the aforementioned judgements);

b) The Court recognised that the State regulates the institution of marriage in different forms primarily to regulate social order and for the devolution of property based on the legitimacy of heirs. There are also tangible and intangible benefits that are conferred by the State that are catered towards marriage.

c) If the Constitution were to guarantee a fundamental right to marry, it would cast a positive obligation on the State to establish the institution of marriage if the legal regime does not provide for it. The Court felt that the ‘institution of marriage’ by itself is not so crucial to classify it as a fundamental right.

d) On the right to a union - the Court, given the rights under Part III of the Constitution, held that all persons (including queer individuals) have the right to enter into an ‘abiding union with their life partner’. The Court also clarified that any person may enter into a consensual romantic or sexual relationship (with no legal consequences attached to it). If, however, two persons enter into a union and consider themselves to be life partners, legal consequences will follow.

e) Non–heterosexual unions and heterosexual unions/ marriages ought to be considered as two sides of the same coin, both in terms of recognition and consequential benefits. The only deficiency at present is the absence of suitable regulatory frameworks for such unions. The Court relied upon its own reference in the Navtej case and held that constitutional institutions must take affirmative steps to remedy the discrimination.

a) If the Supreme Court were to hold the SMA unconstitutional, there would be no scope for inter-caste and inter-faith marriage, leading to discrimination. However, if the judiciary reads into the provisions of the Act, it will end up performing the functions of the legislature, amounting to judicial legislation. A similar view was taken by the Court on FMA. 

b) The SMA has been clear in identifying the scope of marriage between a male who has completed the age of 21 years and a female who has completed the age of 18 years, which indicates that SMA is applicable to heterosexual couples, between a man and a woman. Further, it is highlighted that the intention was to have inter-faith marriages through the SMA; the exclusion of non-heterosexuals is not justified.

c) The sole purpose of SMA was to include marriages between people of different religions. At the time of its enactment, there was no intent to exclude non-heterosexuals due to the then existence of Section 377 of the Indian Penal Code (IPC). The Sections of SMA cannot be interpreted differently or interpreted in a gender-neutral manner, as it will impact gender-specific issues as provided under the statute.

The Hon'ble Supreme Court gave certain directions on the aspects covered in this article including:

a) Ensuring there exists no discrimination against the LGBTQIA+ community based on their gender identity or sexual orientation, or access to public goods and services.

b) Establishment of hotline numbers for the LGBTQIA+ community to approach in case of harassment or violence faced by them in any form.

c) Steps to be taken for the sensitisation of the public about queer identity.

d) Creation of modules under the Mental healthcare Act to cover LGBTQIA+ community.

e) Directions to police machinery to not harass queer couples by way of summoning them to the police station or visiting their residence for the sole purpose of interrogation due to their sexual orientation and/or gender identity.

The Hon’ble Supreme Court concluded that queerness has been known to India since time immemorial. It was opined that the Court has no power to enact laws and that it lies in the domain of the legislature under Articles 245 and 246 of the Constitution read with Entry 5 of List III to the Seventh Schedule.

In terms of the constitutional validity of SMA, it stated that the Court cannot strike down the entire legislation as it would be discriminatory towards people practicing inter-faith marriages or read into the words of the Act as it would amount to Judicial Legislation.

About the authors: Prashanth S Shivadass and Sumonto Chakravarty are Partner and Associate respectively, with Shivadass & Shivadass (Law Chambers).

Disclaimer: The contents and comments of this document do not necessarily reflect the views/ position of Shivadass and Shivadass (Law Chambers) but remain solely of the author(s). For any further queries or follow up, please contact admin@sdlaw.co.in.

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