Same Sex Marriage Verdict

The Supreme Court Bench with a majority of 3:2 on 17 October, 2023 refused²  to give recognition to same-sex marriage. Also not allowing constitutional protection to civil unions and adoption rights for queer couples.³ 

Bench: Dr D.Y. Chandrachud, C.J., Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha, JJ.

Background: On September 6th 2018, the five-judge Bench in case of Navtej Singh Johar v. Union of India⁴ unanimously struck down Section 377⁵ of the Indian Penal Code, hence decriminalizing same-sex relations between consenting adults. LGBTQIA+ individuals were legally allowed to engage in consensual intercourse.

Facts of the case:

• The petitioners in this case are members of the LGBTQIA+⁶ community who continuously face economic, social and political discrimination because of their sexual orientation and gender identity.
• Same-sex relationships are legal in India but same-sex couples are denied the right to marry or enter into registered domestic partnerships.
• The petitioners have challenged this ban as this violates their fundamental rights to equality, life, liberty, dignity, privacy, and freedom of expression. Also depriving them of social welfare benefits associated with marital status.
• The petitioners seek a declaration of their right to marry and recognition of their relationships under these laws.
• This brief factual background provides the important context to understand the nature of claims and reliefs sought by petitioners. It focuses on the long-standing discrimination faced by the LGBTQIA+ community.
• The petitioners thus have lastly appealed to the Supreme Court so that they can get a remedy against violations of their fundamental rights.

Issues Involved:

The present writ petitions raise important issues concerning the rights of LGBTQIA+ community in India. The petitions challenge discriminatory laws and seek remedies from the Supreme Court:

• The core issue was in determining whether same-sex couples can marry under the Indian Constitution or not?
• Is the denial to LGBTQIA+ community regarding marriage laws can be considered as discrimination on sexual orientation and gender identity and influence their fundamental rights under the Constitution?
• Does not including LGBTQIA+ marriages under the Special Marriage Act, 1954, amount to discrimination under Article 14⁷?
• Whether different aspects between public and private marriage of LGBTQIA+ community should be acknowledged legally or not?

Legal Provisions:

• The notice and objection provisions of the Special Marriage Act and Foreign Marriage Act to be declared as void, by enforcing the fundamental rights given under Articles 14, 15, 19 and 21 of the Indian Constitution. 
• Right to Equality: The Court proclaimed that any law that fails to protect the self-determination of sexual orientation and gender identity will come under violation of Article 14 (i.e., Right to Equality).
• Recognition of transgender community as a third gender was done under Article 15 of the Indian Constitution. Thus, by not-recognising their marriage can be seen as discrimination on the grounds of sex which is a violation of Article 15(1) of Constitution.
• Article 19(1)(a) includes the right to express free choice of life partner with whom the person can have a fulfilling and meaningful life. Not Recognizing their marriage is the reason why, LGBTQIA+ community is unable to express their sexual identity and orientation by any means.
• Decisional Independence: The Court highlighted the importance of Article 21 (i.e., Right to Life and Liberty) in protecting individual independence regarding their marriage choices.This strengthens arguments against forced marriages and discriminatory restrictions.

Contentions of Petitioner:

• Firstly, the petitioners stated that denying LGBTQIA+ community the right to marry solely based on their sexual orientation or gender identity is a violation of Article 21 of the constitution of India.
• Secondly, the petitioners argued that excluding same-sex couples from the scope of various marriage laws in India like the Special Marriage Act⁸ violates the right to equality before law and equal protection of laws under Article 14 of Indian Constitution.
• Thirdly, the petitioners state that not giving the right to marry results in unreasonable restriction on the freedom of speech and expression under Article 19(1)(a), as well as the freedoms of association and assembly under Article 19 19 19(1)(b).
• Lastly, the petitioners argued that the bar on same-sex marriage violates the right to integrity of LGBTQ individuals under Article 21.
• Taking into account all these arguments, the petitioners pray to the Hon’ble Court that they recognize the rights of LGBTQ persons to marry and enter into committed relationships as per their choice.

Contentions of Respondents:

• The respondents put forward primary disagreement that was regarding marriage, as an institution, which has traditionally only been understood as a union between a man and a woman. They further said that the very origin of marriage expects procreation as one of its main aims, which is only possible in heterosexual relationships.
• Secondly respondents believed that the State interest lies in legally recognizing opposite-sex unions for procreation, this ensures the survival of society.
• The respondents also stressed on the point that granting recognition to same-sex marriages could open the barriers for other relationships like incestuous or polygamous ones to also demand acceptance.
• The respondents lastly said that providing marital benefits to same-sex couples would require amending numerous laws which are based on the heterosexual concept of marriage.

Judgment:

• In a 3:2 majority, the Hon’ble Supreme Court refused to grant legal recognition to same-sex marriage. The majority held that the right to marry is not a fundamental right, and that it is up to the Parliament to decide whether to legalize same-sex marriage or not.
  The majority also stated that Section 4(c) of the Special Marriage Act does not violate the fundamental rights of same-sex couples.
  The Supreme Court's decision in Supriyo v. Union of India is a setback for the LGBTQ+ community in India.
  However, the dissenting opinion by Justices Chandrachud and Kohli gives hope that the Supreme Court may one day legalize same-sex marriage in India.

About Author:

Greetings everyone!
My name is Isha Tripathi. I am a 5th year BALLB program student at Amity University (Lucknow). I am currently interning at Judicial Disha. I have keen interest in writing legal blogs and legal content writing. I am always looking forward to learn new skills and to pursue my interest in legal writing, i have written several articles and research papers. I always look up to the famous dialogue of Aamir Khan in 3 idiots, "Success ke peeche mat bhaago, Excellence ka peecha karo, Success jhak mar ke tumhare peeche ayegi" it inspires me to seek excellence in everything i do.

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1Supriyo @ Supriya Chakraborty & Anr. Versus Union of India SCC OnLine SC 1348 Writ Petition (Civil) 1011 of 2022
2https://www.indiatoday.in/law/story/supreme-court-rules-against-same-sex-marriage-asks-centre-to-ensure-rights-of-queer-community-2450019-2023-10-17
3https://www.indiatoday.in/law/story/supreme-court-rules-against-same-sex-marriage-asks-centre-to-ensure-rights-of-queer-community-2450019-2023-10-17
4AIR 2018 SUPREME COURT 4321
5Unnatural offences - Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.— Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
6Abbreviation for Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, and Asexual. 
7Constitution of India 
8Special Marriage Act, 1954