Open Access Research Article
RECLAIMING RIGHTS AND REDEFINING NORMS: A LEGAL ANALYSIS OF LGBTQIA+ MARRIAGE RECOGNITION IN INDIA WITH SPECIAL EMPHASIS ON SUPRIYO V. UNION OF INDIA (2023 SCC ONLINE SC 1348)
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RECLAIMING RIGHTS AND REDEFINING
NORMS: A LEGAL ANALYSIS OF LGBTQIA+ MARRIAGE RECOGNITION IN INDIA WITH SPECIAL
EMPHASIS ON SUPRIYO V. UNION OF INDIA (2023 SCC ONLINE SC 1348)
AUTHORED BY
- ANANYA MOHANTY
(5th Year,
BA., LL.B Hons. Amity Law School Noida, Amity University Uttar Pradesh)
INTRODUCTION
The
LGBTQ+ community has faced a lengthy struggle in their pursuit of equal rights
and acceptance within societies worldwide. Historically, they have been met with
resistance and discrimination, making it challenging for them to integrate into
society. Despite some progress in gaining acceptance, a new debate has emerged
on a global scale regarding same-sex unions and marriages.
In
India, the landmark case of Navtej Singh v Union of India[1], decriminalize homosexuality
and allowed same-sex individuals to engage in physical relationships. However,
recognition of the same-sex marriages is still an issue. Conversely, many
countries in the West have taken significant steps towards legalizing same-sex
marriages. Denmark, for instance, was the first country to implement laws
recognizing same-sex unions. Most industrialized democracies worldwide have
also granted legal recognition to same-sex marriages, with a few exceptions
such as the Czech Republic, Italy, Japan, South Korea, and Greece.
Exceptionally, none of the Islamic political structures right currently
perceive homosexual relationships. Additionally, countries like China and
Russia offer limited support for same-sex unions.
This
particular case focuses on the rights of same-sex marriage within the context
of India. The struggle for recognition and acceptance continues, as the LGBTQ+
community strives for equal treatment and the legal recognition of their
unions.
FACTS
OF THE CASE
In
November 2022, a writ petition was filed by two same-sex couples in the Supreme
Court of India, aiming to obtain legal recognition for same-sex marriage. This
petition challenged several provisions of the Special Marriage Act[2],
Hindu Marriage Act[3],
and Foreign Marriage Act[4].
It is worth noting that numerous petitions regarding this matter are currently
awaiting resolution in the High Courts of Delhi and Kerala. The initial
petition was submitted by Supriyo Chakraborty and Abhay Dang, followed by
another petition filed by Parth Phiroze Mehrotra and Uday Raj Anand. The crux
of their argument lies in the contention that Section 4(c)[5] of the Act solely
acknowledges the solemnization of marriage between a 'man' and a 'woman,'
thereby denying them gender equality rights and infringing upon their
fundamental rights as guaranteed by Articles 14[6], 19[7], and 21[8] of the Indian Constitution.
To support their claim, they referenced the cases of NALSA v Union of India[9]
and Navtej Singh Johar v Union of India, where homosexuality was
decriminalized. Nevertheless, the court has yet to address the issue of legal
recognition for same-sex marriages, leaving it unresolved.
ISSUES
RAISED
1. The
question of whether the LGBTQ+ community has the fundamental right to marry and
if this right is recognized.
2. The
issue of whether section 4 (c) of the Special Marriage Act infringes upon the
fundamental rights of LGBTQ+ individuals by failing to acknowledge their
rights.
3. The
debate over whether the Supreme Court possessed the authority to modify the
statute by substituting the terms 'man' and 'woman' with 'spouse'.
4. The
inquiry into whether queer groups in India are able to establish and
participate in unions.
PETITIONER’S
ARGUMENTS
Petitioners
contended that the denial of the right to marry for same-sex couples would
constitute a violation of the fundamental rights enshrined in Article 14 of the
Indian constitution. Furthermore, they argued that this denial would also
infringe upon the right to marry, which is protected under the right to life as
guaranteed by Article 21[10].
They affirmed that the option to wed expands the privileges of living together,
protecting, and picking one's life partner. Additionally, the petitioners
highlighted that the striking down of certain provisions of section 377[11]
of the Indian Penal Code (IPC) grants same-sex couples the right to engage in
consensual physical relationships. This acknowledgment of their rights suggests
that they ought to be dealt with similarly to heterosexual couples in all
viewpoints, including their marital status and connections.
The
petitioners further contended that the use of the terms 'man' and 'woman' in
section 4C[12]
of the Act limits marriage to only two genders, which discriminates against the
rights of the third gender and the LGBTQ+ community. They argued that
amendments should be made to replace the term 'spouse' with more inclusive
language.
Moreover,
the petitioners emphasized that while the main purpose of marriage is often associated
with consummation and procreation, homosexual parents are granted adoption
rights, enabling them to fulfill the responsibilities of raising a child just
like heterosexual parents. They argued that past cases have demonstrated that
heterosexual parents can be irresponsible and pose a threat to their children,
thus it is not conclusive that homosexual parents are incapable of raising a
child.
RESPONDENT’S
ARGUMENTS
Marriage
is viewed as a sacred bond that stems from various social, religious, cultural,
moral, and legal factors. It is argued that this bond is traditionally reserved
for heterosexual couples due to its historical and social significance.
Moreover, proponents of this view suggest that the right to marry is not
absolute and that the state is not obligated to recognize LGBTQ-plus marriages.
The Special Marriages Act was initially designed to promote interreligious and
inter-caste marriages among heterosexual couples. Extending this act to include
non-heterosexual couples would go against the original purpose of the
legislation and could potentially conflict with other existing laws. Therefore,
the power to amend such laws lies solely with the parliament. Legalizing
marriage between homosexual couples would necessitate the creation of a new law,
which falls under the jurisdiction of the legislature, not the judiciary.
Additionally, it is argued that examples from Western countries may not be
directly applicable to a diverse society like India. Proponents also emphasize
the importance of having both a mother and a father in a child's upbringing,
citing concerns about societal stigma and its potential impact on the child's
well-being.
JUDGEMENT
The
Supreme Court's dismissal of the plea for the right of queer people to wed in
India on October 17, 2023, was a critical misfortune for the LGBTQ+ people
group. In a consistent choice, the five-judge constitutional bench presumed
that there is no principal right to wed and that the current Unique Marriage
Act doesn't perceive the marriage of strange people.
In
a 3:2 judgment, the court additionally expressed that same-sex couples don't
reserve the right to form civil unions, adding to the dismay of those
supporting marriage fairness. The five-judge Constitutional bench gave four
separate decisions on the side of marriage balance, each with changing lengths
and contentions.
Chief
Justice DY Chandrachud played a pivotal role in the ruling, drafting a
comprehensive 247-page opinion out of the total 366-page ruling. Justice Bhat,
writing on behalf of Justice Hima Kohli, contributed an 89-page opinion, while
Justice Kaul wrote 17 pages, having joined the Chief Justice's opinion. Justice
Narasimha composed a concise thirteen-page opinion.
The
judges unanimously agreed that the right to marry is not a fundamental right,
as it requires an established institution for marriage to be considered as
such. They argued that such an institution for same-sex couples has not yet
been recognized in India. Chief Justice Chandrachud further contended that
including same-sex couples under the existing Act would violate the separation
of powers, as it would require the court to declare the Special Marriage Act
unconstitutional, potentially affecting interfaith and inter-caste marriages.
Emphasizing
the importance of the judiciary's limited role in legislative matters,
Chandrachud highlighted that the parliament holds the authority to make
amendments to the statute. He argued that interfering with legislative
decisions would undermine the principle of separation of powers.
Furthermore,
Chandrachud acknowledged that the institution of marriage has evolved over time
and has undergone significant transformations throughout history. While he
recognized the opposition to change, he emphasized that the institution is not
static and should adapt to the evolving needs and aspirations of society.
The
Supreme Court's rejection of the plea for marriage equality in India was a
disappointing outcome for the queer community and their supporters. It
highlighted the ongoing struggle for equal rights and recognition, underscoring
the need for continued advocacy and efforts to bring about societal change.
The
landscape, both physical and societal, has experienced a remarkable and
profound metamorphosis over the past two centuries, diverging greatly from the
era of our forefathers. This transformation has prompted a widespread agreement
among the general populace that the legislative body should take necessary
measures to address the changing dynamics. In line with this consensus, Justices
Hima Kohli, Ravindran Bhat, and Narasimha, forming the majority opinion, firmly
believe that enacting legislation is imperative to adapt to the evolving
landscape.
Conversely,
Chief Justice DY Chandrachud and Justice Kaul hold a dissenting viewpoint,
advocating against the introduction of civil unions for same-sex couples.
Despite acknowledging the significant transformation that has occurred, they
argue against altering the traditional definition of marriage and maintaining
the status quo. Their dissenting opinion emphasizes the preservation of
societal norms and values that have been upheld for generations.
The
majority opinion, supported by Justices Kohli, Bhat, and Narasimha, recognizes
the need for legislative action to accommodate the changing landscape. They
contend that the societal shifts, including advancements in technology, globalization,
and the recognition of individual rights, necessitate a reevaluation of
existing laws and the introduction of new legislation. They argue that failing
to adapt to these changes would result in an outdated legal framework that
fails to address the needs and aspirations of the current generation.
On
the other hand, Chief Justice Chandrachud and Justice Kaul express concerns
about the potential consequences of introducing civil unions for same-sex
couples. They argue that such a move would undermine the sanctity of marriage
as traditionally understood and could have far-reaching implications for
society. Their dissenting viewpoint emphasizes the importance of preserving the
institution of marriage as it has been historically defined, rooted in religious
and cultural traditions.
While
the majority opinion highlights the necessity of legislative action to
accommodate the transformed landscape, the dissenting viewpoint emphasizes the
importance of maintaining societal norms and values. This difference in opinion
reflects the ongoing debate surrounding the role of the judiciary in adapting
to societal changes and the balance between tradition and progress.
Ultimately,
the decision on whether to enact legislation in response to the transformed
landscape lies in the hands of the legislative body. The contrasting opinions
of the justices provide a comprehensive understanding of the complex
considerations involved in addressing the evolving landscape and highlight the
need for a thoughtful and inclusive approach to legislation.
JUDGEMENT
ANALYSIS
The
Indian society already discriminates against the queer community as they have
to face several prejudices in basic aspects of their lives, including
employment, housing, and healthcare. The lack of legal recognition for same-sex
marriages and the denial of adoption rights further perpetuate the
marginalization of the queer community.
The
argument that marriage is not essential for same-sex couples fails to
acknowledge the societal and legal benefits that come with marriage. Marriage
provides legal protections and rights, such as inheritance rights, healthcare
decision-making power, and tax benefits. Denying these rights to same-sex
couples not only denies them equal treatment under the law but also reinforces
the notion that their relationships are less valid or deserving of recognition.
Besides,
the forswearing of adoption rights to same-sex couples isn't simply unfair but
additionally impeding the prosperity of youngsters. Various investigations have
shown that kids raised by same-sex couples prosper similar as well as those
raised by heterosexual couples. Denying same-sex couples the potential chance
to adopt not only denies them the opportunity to fabricate a family yet in
addition denies children the opportunity to be set in cherishing and strong
homes.
The
fight for equal rights for the LGBTQ+ community is not just about marriage and
adoption. It is about challenging and dismantling the deeply ingrained
homophobia and transphobia that exist within Indian society. It is about
creating a society where individuals are free to express their true selves
without fear of discrimination or violence.
The
recent ruling may have sparked controversy and disappointment, but it has also
ignited a renewed sense of determination within the LGBTQ+ community and its
allies. They will continue to fight for their rights, to challenge
discriminatory laws and practices, and to create a more inclusive and accepting
society for all. This judgment, however, has prompted a positive step towards
their dream, since it is a 3:2 majority and it is plausible that without
further ado the government could give more freedoms to the community and
corrections required can be made by the parliament following this judgment.
CONCLUSION
The
Supreme Court's decision to deny the legal recognition of marriage to
homosexual individuals in India, with a 3:2 majority, is undoubtedly a setback
for the LGBTQ+ community. However, there is a glimmer of hope for a more
inclusive future, as a larger bench may have the power to overturn this ruling.
This situation mirrors the previous case of Navtej Singh Johar v the Union of
India, where homosexuality was initially recriminalized but later
decriminalized due to the resistance and activism of the LGBTQ+ community.
In
this current appeal, the court had to examine the constitutionality of the
Special Marriage Act and Foreign Marriage Act, which are the primary laws
governing marriage in India. The denial of legal recognition to homosexual
individuals under these acts raises questions about the rights and equality of
the LGBTQ+ community. However, there are two potential alternatives that could
address this issue.
Firstly,
the executive branch has the power to enact laws that broaden the scope of the
Special Marriage Act and Foreign Marriage Act to include same-sex marriages.
This would require a proactive approach from the government to recognize the
rights and dignity of LGBTQ+ individuals and ensure their equal treatment under
the law.
Secondly,
the judicial route can be pursued by challenging other aspects of marriage that
encompass legal rights. Marriage grants various legal rights, such as
inheritance, property rights, protection against violence, pension schemes, and
other benefits that may not be available in live-in relationships or other
forms of partnership. By challenging the denial of these rights based on sexual
orientation, the LGBTQ+ community can seek a more inclusive interpretation of
the law.
It
is important to note that discrimination based on sexual orientation not only
violates Articles 21 and 14 of the Indian Constitution, which guarantee the
right to life and personal liberty and the right to equality, respectively, but
also Article 15, which prohibits discrimination on various grounds, including sex.
These constitutional provisions provide a strong foundation for challenging the
denial of marriage rights to homosexual individuals.
Despite
this setback, there is still hope for a more positive response from the justice
system in the ongoing struggle for equality for the LGBTQ+ community in India.
The fight for equal rights and recognition continues, and the opportunity for a
more inclusive and just society remains open. With continued activism, legal
challenges, and societal awareness, it is feasible to make a future where all
people, no matter what their sexual orienation, can partake in the major right
to wed and access the legitimate securities and advantages that accompany it.
[1] Navtej Sing Johar
v Union of India (2018) INSC 790
[2] Special Marriage Act 1954
[3] Hindu Marriage Act 1955
[4] Foreign Marriage Act 1969
[5] Special Marriage Act 1954 Section
4 (c)
[6] Constitution of India 1950 Article
14
[7] Constitution of India 1950 Article
19
[8] Constitution of India 1950 Article
21
[9] NALSA v Union of
India (2014) SCC 438
[10] Constitution of India 1950 Article
21
[11] Indian Penal Code 1860 Section 377
[12] Special Marriage Act 1954 Section
4 (c)
Article Information
RECLAIMING RIGHTS AND REDEFINING NORMS: A LEGAL ANALYSIS OF LGBTQIA+ MARRIAGE RECOGNITION IN INDIA WITH SPECIAL EMPHASIS ON SUPRIYO V. UNION OF INDIA (2023 SCC ONLINE SC 1348)
Authors: ANANYA MOHANTY
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/26
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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