Supriya v. Union of India
Priti Vijay Kawhale
Manikchand Pahade Law College Chhatrapati Sambhaji Nagar
This Case Commentary is written by Priti Vijay Kawhale, a Fourth Year Law Student of Manikchand Pahade Law College Chhatrapati Sambhaji Nagar
Court - Supreme Court of India
Bench - CJI D.Y.Chandrachud, J. S.K.Kaul, J. S.R.Bhat, J. Hima Kohli, J. P.S.Narasimha
Case type – Writ petition (civil)
Date of Judgment – 17 October 2023
Parties –
Petitioners – Supriya Chakraborty and Anr.
Respondent – Union of India
Citation – W.P(Civil)No. 1011 of 2022 Diary No. 36593/2022
Abstract
Supreme Court of India heard several historic cases and gave the landmark judgment in this case. Same-sex marriage is a controversial and contentious issue in many nations, including India. Marriage is a significant social institution that society comprehends. Hence, the judgment given by the Supreme Court of India determining its legal enforceability holds certain normative values. The constitution of India does not explicitly recognize the right to marry as a fundamental right. The writ petition was filed in the Supreme Court by the petitioner to get the right to marry and start a family as a fundamental right.
Introduction
Supreme Court heard several historic cases including this one, to decide whether or not to provide members of sexual and gender minority groups in India the ability to get married and start a family. The case stemmed from various petitions filed across Indian High courts seeking legal recognition of LGBTQIA+ couple’s right to marry.
· In Navtej Singh Johar vs Union of India
Criminalizing ‘carnal intercourse against the order of nature ‘ in section 377 of the Indian Penal Code, 1860. The court clarified that consensual and private same-sex activities between adults constitute an essential part of one’s privacy. However, the court refrained from addressing whether these rights would apply in public aspects like marriage rights. Section 377 of the Indian Penal Code 1860 has been declared to be unconstitutional. The fundamental rights guaranteed by article 14, article 15, article 19, and article 21 of the constitution of India were being violated by section 377 of IPC alone.
· In Union of India and Justice K.S Puttaswamy (9J) vs Union of India
According to NALSA (supra), this court ruled that people who do not fit into the male-female binary should be recognized by the state as a “third gender person” and they should be granted all the rights protected by the constitution. This court held that an individual’s right to express their sexual orientation is protected by the Constitution.
Marriage: Marriage is a legally and socially sanctioned union, usually between a man and a woman, that is regulated by laws, rules, customs, beliefs, and attitudes that prescribe the rights and duties of the partners and accords status to their offspring.
Special Marriage Act 1954
Section 4- condition relating to solemnization of special marriage.
Section 4(c) – the male has completed the age of twenty-one years and the female the age of eighteen years.
Facts
1. The writ petition was filed by two same-sex couples at the Supreme Court on November 14th, 2022.
2. Supriyo Chakraborty and Abhay Dang were the first petitioners for the case. Parth Phiroze Merhotra and Uday Raj Anand filed the second petition.
3. Petitioners challenged the validity of section 4(c) of special marriage Act, 1954.
4. It was challenged on the ground that, the provision of this act discriminates against same-sex couples by denying them the right to adoption, surrogacy, employment, and retirement benefits.
5. similar petitions were pending before the high courts which were transferred to the Supreme Court of India itself.
6. These other petitions challenged the enactments including the Hindu Marriage Act, 1955, and the Foreign Marriage Act, 1969.
Issue Raised in this case
1. Is there any fundamental right to marry?
2. Can queer couples adopt a child?
3. Is the Special Marriage Act, 1954 unconstitutional?
4. Does the queer couple have the right to marry?
5. Weather the denial of the right to marry for queer couples amount to a violation of their right to privacy and dignity?
Contention on behalf of the petitioner
1. The petitioner argued that since the Supreme Court had already approved the recognition of the right to dignity, right to equality, and right to privacy as a part of a fundamental right that must be guaranteed to LGBTQIA+ persons, providing and guaranteeing them the right to marry and right to adoption is only a subsequent move of the same.
2. The right to liberty and freedom given under Article 19 and Article 21 of the constitution guarantees a person's right to marry a person of their choice and this should be given to the LGBTQIA+ person also.
3. The Special Marriage Act,1954 violates these rights and it should be held as unconstitutional as it denies marriage between people of the same sex – the same amount of discrimination against a group of people whose sexual orientation is different.
Contention on behalf of the respondent
1. The arguments raised by the respondent to counter the petitioner that the unconstitutionality of the Special Marriage Act, 1954 cannot come into question at all. Because at the time of making this law, there was no existence of non-heterosexual union.
2. Another important argument related to whether the right to marry is impliedly guaranteed by the Constitution. No article under the fundamental rights of a person under the constitution guarantees the right to marry or form unions.
3. It is also argued that the state is not under any obligation to recognize every type of relationship and it only gives regard to those relationships where it has its interest as well.
Related provision
1. Right to equality (article 14) – this article of the constitution guarantees equality before the law and equal protection of the law. The LGBTQIA+ people recognized as a third gender also have this fundamental right.
2. Right to life and personal liberty – this article covers a wide range of rights; it guarantees basic human rights to develop their life and exercise personal liberty.
3. Right to privacy – It is a fundamental right given under the article 21. It says that every individual has a right to privacy.
4. Right to marry – Article 21 gives the right to choose a partner of own choice as a fundamental right but it does not ensure the right to marry as a fundamental right.
Judgment
In this case, it was held by the five-judge bench that, the right to marry is not a fundamental right in itself and neither does it come under the protection of any of the other basic rights. The court emphasized that, when it comes to the right to marry, it is only up to the state to make a law approving of it. The court also emphasized that it is important to note that just because the right to marry is not provided to LGBTQIA+ people, it does not mean that they are not being given the ability to practice their right to privacy, choice, and autonomy.
Thus, the terms of the judgment disposing of the petitions in this case, and the right to marry for LGBTQIA+ people were thereby not granted.
Conclusion
Marriage is a significant social institution that society comprehends. Hence, the judgment determining its legal enforceability holds certain normative values. The judgment highlights the need for a more consistent and progressive interpretation of fundamental rights by the judiciary, aligning with the principles of equality, non-discrimination, and human rights enshrined in the Indian constitution.
References
1. Indian kanoon
https://indiankanoon.org/doc/129202312/
2. The amikus qriae
https://theamikusqriae.com/case-supriyo-supriya-chakraborty-anr-vs-union-of-india/
3. https://privacylibrary.ccgnlud.org/case/supriyo-supriya-chakraborty-anr-vs-union-of-india
4. The legal quorum
https://thelegalquorum.com/supriyo-supriya-chakraborty-and-anr-vs-union-of-india/
5. https://www.dhyeyalaw.in/supriya-chakraborty-anr-v-union-of-india