Apex Court Verdict on Same‑Sex Marriage in India: Legal Status and Key Impacts

Introduction

• Supriyo @ Supriya Chakraborty & Anr. vs. Union of India,
• On 14th November 2022, two couples of LGBTQ+ individuals and same-sex couples filed writ petitions under Article 32 of the Constitution, seeking legal recognition of their marriages under the Special Marriage Act, 1954 (SMA) and other relevant statutes. The petitioners contended that the exclusion of same-sex couples from the ambit of marriage laws violates their fundamental rights under Articles 14, 15, 19, and 21. The five-judge Constitution Bench, led by Chief Justice D.Y. Chandrachud, delivered a 3:2 split verdict on 17 October 2023. While the Court unanimously recognized the right of queer individuals to form intimate unions and be protected from discrimination, the majority held that the right to marry is not a fundamental right under the Constitution and that any legal recognition of same-sex marriage must come through legislation, not judicial interpretation.
• Issues Involved
  
  • Does the Constitution of India guarantee a fundamental right to marry for all individuals, irrespective of sexual orientation or gender identity?  
  • Does the exclusion of same-sex couples from the Special Marriage Act, 1954, which defines marriage as a union between a "male" and a "female," violate fundamental rights?  
  • Can the Supreme Court of India reinterpret or strike down provisions of the SMA to include same-sex marriages, or is it in the exclusive domain of Parliament?
  • How far can the Judiciary interfere with substantive marriage laws?
  • In case the full marriage equality cannot be granted, do queer couples have a constitutional right to form legally recognized unions with rights similar to marriage, related to adoption, succession, etc.?
  • Should the rights of a normal couple, such as adoption, inheritance, spousal benefits, or joint property ownership, extend to queer relationships without formal marriage recognition?
  • What are the practical implications of exclusion from marriage laws, and are alternative protections enough for queer couples?

Arguments Submitted

• Arguments of the Petitioners: The petitioners, comprising LGBTQA+ individuals and couples, prayed for legal recognition of same-sex marriages under the Special Marriage Act, 1954 (SMA), and other laws. Their key arguments were:
  
  • The exclusion of same-sex couples from marriage laws infringes on the right to equality (Article 14), as it arbitrarily discriminates based on sexual orientation. It restricts freedom of expression (Article 19), including the right to express one's identity and relationships, and denies the right to life and personal liberty (Article 21), which encompasses dignity, autonomy, and the choice to form intimate unions. They cited cases like Navtej Singh Johar v. Union of India (2018), which decriminalized homosexuality, arguing that equality not only means decriminalization but must be extended to affirmative rights.
  • While the right to marry is not explicitly stated, it can be inferred from constitutional guarantees of autonomy and dignity. They pointed out that marriage is a personal choice, which should not be limited to heterosexual couples, citing examples of interracial or interfaith marriages permitted under the SMA.
  • The language of the Special Marriage Act, i.e., "male" and "female" under Section 4(c), can be reinterpreted by the Court to include same-sex couples, as the apex court has historically corrected discriminatory laws (e.g., K.S. Puttaswamy case) and stepped into the domain of legislature to protect marginalized groups (e.g., Vishaka case guidelines). 
  • Without marriage recognition, queer couples are denied basic rights that are available to normal couples, like adoption, inheritance, tax benefits, and spousal privileges, perpetuating second-class citizenship. They mentioned that these exclusions harm their social and economic well-being, violating Constitutional equality.
  • They cited examples of countries like the United States, Canada, and South Africa, where courts or legislatures have recognized same-sex marriages, urging the apex court to do the same to align with changing global norms. 
• Arguments of the Union Government: The Union Government, represented by the Solicitor General and other officials, opposed the petitions, defending the heterosexual framework of marriage laws. Their main arguments were:
  
  • They argue that marriage is not a fundamental right but a socio-legal construct rooted in tradition and culture, and historically recognized as a union between a man and a woman. Recognizing same-sex marriage will alter this socio-legal construct and require societal consensus.
  • Defining, redefining, or altering laws related to marriage is Parliament's domain, and the judiciary should not encroach upon Parliament's power. They cited the principle of separation of powers, claiming that the courts cannot interpret new rights or rewrite statutes. Only the Parliament could address queer rights through debate and legislation, not judicial dictate.
  • The government contended that the SMA's exclusion of same-sex couples is not discriminatory but a rational classification that is permitted under Article 14 of the constitution based on the purpose of marriage, i.e., procreation and societal stability, which they claimed applies uniquely to heterosexual unions. Queer individuals already enjoy cohabitation rights post the Navtej Johar judgment.
  • Recognizing same-sex marriage would require overhauling multiple laws of adoption, succession, taxation, etc. They warned of unintended consequences for personal laws tied to religion and custom. Indian society remains largely unready for such a shift, citing potential backlash and the need for broader consultation. Instead of marriage, the government suggested forming a committee to examine administrative solutions for queer couples, such as access to joint bank accounts, healthcare decisions, or nomination rights. This, they argued, addresses practical needs without redefining the institution of marriage.

The Chief Justice Issued Significant Directions and Conclusions in the Case

• Ordered the Union Government, State Governments, and Governments of Union Territories to ensure non-discrimination against the LGBTQ+ community based on their gender identity or sexual orientation. They should also ensure equal access to goods and services available to the public.
• Called for public awareness and education about queer identity, emphasizing its naturalness and rejecting the notion of it being a mental disorder.
• Mandated the establishment of hotlines for LGBTQ+ community members to report harassment and violence.
• Required the creation and promotion of 'safe houses' in all districts to provide shelter to LGBTQ+ individuals facing violence or discrimination.
• Demanded an immediate halt to "treatments" attempting to change gender identity or sexual orientation.
• Prohibit forced surgeries on intersex children concerning their sex, especially when they cannot understand or consent.
• Recognized self-identified gender for all, including transgender individuals, hijras, and those with sociocultural identities, as male, female, or third gender. No one should be compelled to undergo medical procedures or therapy as a condition for legal recognition of their gender identity.
• Directed the inclusion of modules covering the mental health of queer individuals in programs under the Mental Healthcare Act.
• Emphasized the need for police not to harass queer couples, force them to return to their families, or interfere with their freedom. They should also conduct preliminary investigations before registering FIRs against queer couples.
• Clarified that the right to marry is not explicitly recognized as a fundamental right in the Constitution, but many aspects of the marital relationship reflect constitutional values.
• Underlined the state's obligation to recognize unions formed by queer couples and grant them legal benefits.
• Expanded the interpretation of Article 15(1) to include "sexual orientation," preventing discrimination on this basis.
• Affirmed the right of queer couples to enter into a union, protected from external threats, with discrimination based on sexual orientation violating Article 15.
• Recognized the right of transgender persons in heterosexual relationships to marry under existing laws.
• Ordered that unmarried couples, including queer couples, can jointly adopt a child, with necessary regulation changes.
• Noted the disproportionate impact of the CARA Circular on the queer community, which violates Article 15.
• Recorded an assurance from the Solicitor General regarding the constitution of a Committee to define and clarify the entitlements of queer couples in unions.

Justice Sanjay Kishan Kaul

• Justice Kaul concurred with the Chief Justice's judgment, emphasizing that legal recognition of non-heterosexual unions represents a step toward marriage equality. He highlighted the importance of preserving LGBTQ+ couples' autonomy while respecting their capacity for love, commitment, and responsibility.

Justice S Ravindra Bhat and Justice Hima Kohli

• Justice Bhat, along with Justice Hima Kohli, concluded that there is no absolute right to marriage under the Constitution, and the legal recognition of the right to a union or relationship should be established through enacted law. However, LGBTQ+ couples have the right to celebrate their commitment within the social realm. Justice Bhat also stressed the need to address discriminatory impacts on LGBTQ+ couples in terms of benefits and entitlements.

Justice P S Narasimha

• Justice Narasimha, concurring with Justice Bhat, noted that the issue of marriage equality for LGBTQ+ couples had not arisen in previous court decisions. He emphasized LGBTQ+ individuals' rights to gender identity, sexual orientation, and the freedom to choose a partner, cohabitate, and enjoy physical and emotional intimacy. Justice Narasimha found that legally enforceable civil unions for LGBTQ+ couples could not be established under Part III of the Constitution. He also supported the constitutionality of Regulation 5(3) of the Central Adoption Resource Authority (CARA) Regulations while highlighting the need for further consideration regarding de facto families and single individuals adopting children.

Conclusion

The Court clarified that altering the Special Marriage Act or permitting same-sex unions falls under the jurisdiction of Parliament rather than the judiciary. Secondly, there's an emphasis on the State's responsibility to support the rights of LGBTQ individuals. Thirdly, the judgment affirms that queer couples can engage in intimate relationships without restrictions. Additionally, it's highlighted that in the absence of a uniform central law, individual states possess the flexibility to enact legislation acknowledging same-sex marriage. The judgment underscores that the power to amend marriage laws rests with the Parliament. Moreover, it reiterates that selecting a life partner is a fundamental right, and queer individuals should not face discrimination in this regard. Lastly, a committee, headed by the Cabinet Secretary and comprising experts, will be established by the central government for extensive consultations on this matter. For legal assistance, contact us. 

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