This article has been written by Jessica Fernandez from Lloyd Law College.

Edited and Published by Risha Fatema.

INTRODUCTION

In 2023, all the members of the LGBTQIA+ community and their allies were reliant and hopeful for the outcome of the judgement in Supriya Chakraborty & Abhay Dang v. Union of India, as it was the first time that a discussion in the Court was carried out for legalisation of same sex marriage.

This petition sought the procurement of legality of marriage between
homosexuals. It was filed with the view to extend the right to marry and establish a family to sexual and gender minority individuals in India. A five-judge Constitution Bench, consisting of Chief Justice of India D.Y. Chandrachud, Justice S.K. Kaul, Justice S.R Bhat, Justice Hima Kohli and Justice P.S. Narasimha, heard 20 connected cases brought by 52 petitioners.

BACKGROUND & HISTORY

Homosexuality was for the very first time decriminalised in 2009 in Naz Foundation v NCT of Delhi. The Naz foundation had been fighting since 2001 for this right and had finally secured it for the LGBTQIA+ community. However, the celebration did not last for long since this decision was soon overturned in Suresh Kumar Koushal v Naz Foundation in 2013.

Then, in Navtej Singh Johar v UOI, 2018, it was established by the Supreme Court
that there is no intelligible differentia between natural and unnatural intercourse, and therefore, Section 377 which decriminalised homosexuality was declared unconstitutional and was struck down. The Court concluded that sexual orientation was natural, innate and immutable. It held that the “choice of LGBT person to enter into intimate sexual relations with persons of the same sex is an exercise of their personal
choice, and an expression of their autonomy and self determination.’’

ISSUES

● Is queerness “un-Indian’’? Who is an Indian? What practices are Indian?
● Is the right to marry a fundamental right?
● Are provisions of the SMA unconstitutional?
● Are provisions of the FMA unconstitutional?
● Can the supreme court read in the SMA to legalise same sex marriage?
● Adoption rights of queer couples

ARGUMENTS

By Petitioners:

The petitioners contended that the SMA is violative of Article 14 of the Constitution because there is no constitutionally valid, intelligible differentia between LGBTQIA+ and non-LGBTQIA+ persons. The classification in this case is based only on the sexual orientation and gender identity of the parties to a marriage, which is
constitutionally impermissible. Further, there is no rational nexus with the object sought to be achieved by the SMA. The object of the SMA is to provide a civil form of marriage for couples who cannot or choose not to marry under their personal law. The exclusion of LGBTQ couples from the SMA has no rational nexus with this object.

Recognizing the right of LGBTQIA+ couples to marry upholds constitutional
morality. Constitutional morality urges the organs of the state, including the judiciary, to be pluralistic and inclusive. Article 32 of the Constitution vests in persons or citizens a fundamental right to approach the Supreme Court for the enforcement of the rights guaranteed in Part III of the Constitution. It is therefore incorrect to argue that queer people must wait for Parliament to enact a law granting marriage equality.

It was suggested by the petitioners that in order to be inclusive, the SMA should be read in a gender-neutral manner. Gendered terms such as “husband” and
“wife” ought to be read as “spouse.” The language used in the SMA facilitates a gender neutral interpretation. Section 4 of the SMA is PART B 22 with reference to “any two persons”. Section 4(1)(a) refers to a “spouse” and Section 4(1)(b) refers to a “party”.

The exclusion of same-sex couples from the SMA is violative of Article 19 of the
Constitution because the act of entering into a marital relationship is protected under Article 19(1)(a) of the Constitution, and is a socially valuable form of expression. It was further argued that the restriction on the right of queer persons to marry is not a reasonable restriction under Article 19(2).
The petitioners were of the view that the exclusion of same-sex couples from
the SMA is violative of their right to dignity and is therefore violative of Article 21 of the Constitution.

The exclusion of same-sex couples from the institution of marriage is being
used to send a public message about their worth as unequal moral members of society and is the same as caste-based restrictions on temple entry and the refusal to accommodate disability in public examinations; Civil unions are not an equal alternative to the legal and social institution of marriage. Relegating non-heterosexual relationships to civil unions would send the queer community a clear message of subordination – that their relationships are not at par or inferior to heterosexual relationships.
The Union of India has stated that only Parliament can grant a new ‘socio-legal status of marriage’ to LGBTQ persons, after undertaking extensive consultations and eliciting views from every part of the nation. The petitioners rebutted by urging that the rights of the LGBTQIA+ community cannot be made contingent on the opinion of the majority.The SMA and the FMA are violative of Article 14 of the Constitution because they deny LGBTQIA+ persons the equal protection of laws, are
manifestly arbitrary, and fail the rational nexus test.

By Respondents:

The Union of India, through Solicitor General Tushar Mehta contended that
the prominent components of a marriage are companionship, sexual intimacy, and most importantly, procreation. Marriage from an individual perspective serves the purpose of sustaining an individual’s gene pool and from a societal perspective, it contributes towards the proliferation of future generations for the sustenance of humankind.
Therefore, there is no point in the legalisation of marriage between homosexual couples.

It was further argued that the Constitution does not recognize a right to marry. An expression of a person’s sexuality is protected under Article 19(1)(a) of the Constitution. However, marriage cannot be traced to the right to freedom of expression or the right to form unions under Article 19(1)(c). The State is not under an obligation to
grant legal recognition to every type of relationship. The State only recognizes
relationships when there exists a legitimate state interest. The State has a legitimate State interest in legally recognizing heterosexual relationships for the sustenance of society which is why heterosexual marriages are legal and can be registered and can also avail the benefits bestowed by the state upon the married couple.

Further, the Courts do not have the power to decide if legal recognition can be granted to a union of non-heterosexual individuals. This is an issue which must necessarily be decided by the legislature as they are the elected representatives of the citizens. It was also contended that both the father and the mother have a significant and unique role in the upbringing of children. In non-heterosexual unions, the child born
out of surrogacy or artificial reproductive technology or adopted by the couple would feel the absence of either a father or a mother.

The object of the SMA is to grant (and regulate) legal recognition to inter-faith
and inter-caste unions of heterosexual couples. The provisions of the SMA have a reasonable nexus to this object. There is also an intelligible differentia in classifying unions into heterosexual and non-heterosexual partnerships because heterosexual couples sustain a society through procreation. The constitutionality of a statute cannot
be challenged on the ground of under-inclusion. It was also stated that children who have been exposed to homosexual experiences are more likely to identify as a homosexual on attaining adulthood. Thus, the Court must not approach this issue from a “linear reductionist perspective.”

The SMA would become unworkable if it is read in a gender-neutral manner. It
would also amount to this Court re-drafting a large number of provisions which would be a hassle. A legal recognition of a union is premised on the recognition of a relationship on an individual level, family level, and societal level, and same sex marriages would have great difficulty in its recognition at the family and societal level.

Furthermore, the right to marry cannot be traced to the right to privacy. The
right to privacy postulates the right to be left alone. There is a negative obligation on the State and the society to not interfere with choices of individuals.
Coming to the SMA, the mere usage of a gender-neutral term does not
indicate the legislative will to include non-heterosexual unions within the ambit of the enactment. The statute is not underinclusive for impliedly excluding non-heterosexual unions from its purview because Parliament did not contemplate the inclusion of non-heterosexual marriages at the time of enactment of the Act. A statute will be under-inclusive only where a statute which must necessarily cover a category excludes them from the benefits it confers.

Finally, the interpretative tool of “reading-in” means reading into the text of the statute and not altering it. Reading the word “spouse” into SMA where the words “husband” and “wife” are used would render provisions which are enacted based on conventional ideas about a heterosexual relationship redundant. On the same point, Mr. Arvind P Datar, learned senior counsel, further stated that a statute can be struck down after a passage of time only if the rationale of the law ceases to exist as in the case of Section 377 of the IPC where medical research indicated that same sex relationships are not unnatural or against the order of nature.

Their main argument still remained-The legal recognition of non-heterosexual
unions is a polycentric issue which cannot be resolved solely by the judiciary, but requires the hand of the Legislature.

JUDGEMENT OF THE COURT AND ANALYSIS

In a majority verdict, the court ruled against same-sex marriage. The Union of
India suggested that this Court would be violating the doctrine of separation of powers if it determines the lis in this case. The separation of powers undoubtedly forms a part of the basic structure of the Constitution, but equally, the power of courts to conduct judicial review is also a basic feature of the Constitution. The doctrine of separation of powers certainly does not operate as a bar against judicial review, in fact, judicial review promotes the separation of powers by seeing to it that no organ acts in excess of its constitutional mandate.This Court cannot make law, it can only interpret it and give effect to it.
The Supreme Court held that the Constitution does not expressly recognize a fundamental right to marry. An institution cannot be elevated to the realm of a fundamental right based on the content accorded to it by law. However, several facets of the marital relationship are reflections of constitutional values including the right to human dignity and the right to life and personal liberty.

The majority opinion refused to strike down the Central Adoption Resource
Authority (CARA) regulations that restrict queer couples from joining in adopting a child.

While it noted that these regulations are discriminatory and violative of Article 14, the majority opinion did not support adoption rights for same-sex couples, citing the need to explore all areas for the benefit of children in need of stable homes.

It was further held that the Court cannot read words into the provisions of the
SMA and provisions of other allied laws such as the ISA and the HSA because that
would amount to judicial legislation. The Court in the exercise of the power of judicial review must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain.

Transgender persons in heterosexual relationships have the right to marry
under existing law including personal laws which regulate marriage;The Court affirmed the Madras High Court decision in Arun Kumar v. Inspector General of Registration (2019), which declared marriage between a Hindu male and a transwoman a valid union. Intersex persons who identify as either male or female have the right to marry under existing law including personal laws which regulate marriage; Unmarried couples (including queer couples) can jointly adopt a child.

The court held that it can neither strike down or read words into the Special Marriage Act (SMA) 1954 to include same sex members within the ambit of the SMA 1954.The top court said it is for Parliament and state Legislature to formulate laws on it. The court also stated that it acknowledges the need for equal rights for queer couples in areas like ration cards, joint bank accounts, pensions, and gratuity. However, there is a disagreement on whether the judiciary or the legislative and executive branches should address these issues. Many queer persons also face violence from natal families and are reportedly kidnapped in an attempt to end relationships. The judgment identified that families of LGBTQ persons as well as the police are the primary actors in such violence, and has issued directions to the police department to not force queer persons to return to their family.

The verdict rejected the government’s argument that same-sex unions are
unnatural or non-Indian. It acknowledged that queer love has existed in India for a long time and that the constitutional legitimacy of same-sex relations is not undermined by societal acceptability. The Supreme Court also directed the establishment of a high-powered committee (HPC) chaired by the Cabinet Secretary, appointed by the Central Government, to comprehensively examine factors related to same-sex marriage, considering the input of all stakeholders, states, and union territories.

CONCLUSION

Contrary to expectations of the LGBTQIA+ community for
non-discrimination in marriage, the Court denied same-sex couples the right to marry, passing this task to the Legislature. This was a huge setback for the queer community as well as their allies in India.

However, the freedom of same-sex couples to cohabitate freely was
acknowledged by all judges and the idea of establishment of a High-Powered
Committee retains the yearning of the community to fight for their rights and keep at their cause. Not all hope is shattered and they continue fighting their fight. It is of grave necessity to accommodate queer persons in the society today as it relates to the very
basic human dignity that everyone is entitled to as humans.

The Legislature might be reluctant to approve same-sex unions because of
resistance from groups with religious and cultural views. The Court’s request for a government committee on the rights of queer spouses offers optimism to the LGBTQIA+ community, but there is still work to be done before there is legal equality.

REFERENCES

1. LGBTQ+ Rights in India: The Supreme Court’s Verdict

2. Explained | How We Got Here: A Brief History of LGBT Rights and Laws in India

3. Key Takeaways of judgement: same sex marriage 

4. Judgement on the case by the Supreme Court