The Hon’ble Supreme Court of India on 17th October 2023 gave its verdict in the case of Supriyo @ Supriya Chakraborty & Anr. vs Union of India (2023) with respect to the question of “right to marry” of the LGBTQIA+ community in India and the bouquet of rights which come along with the institution of marriage. The question of Same-sex marriage divided the country into two extremes during its proceedings.
The judgement was ruled against the favour of LGBTQIA+ community with a ratio of 3:2 recognizing that the “right to marry” is not a fundamental right in this country and the Supreme Court cannot pass a law regarding it as it is a call of the Parliament of India. The 5 judge -bench headed by Hon’ble CJI DY Chandrachud with Justices Sanjay Kishan Kaul, Ravindra Bhat, Hima Kohli and PS Narasimha ruled that the Supreme court cannot read the provisions of the Special Marriage Act, 1954, a secular legislation for inter-faith and inter-caste couples, differently and cannot interpret the law or widen its scope unless the Centre makes changes in it considering the queer community.
The article focuses on the precedent set by the judiciary in interpreting the law concerning the community as well as the social implications quoted if same-sex marriage was legalised.
After the landmark judgement of decriminalisation of consensual sex between two adults including homosexuals under Section 377 in Navtej Johar vs Union of India thr. Secretary Ministry of Law and Justice (2018) AIR 2018 SC 4321 was pronounced, the question of legalising same-sex marriage came along. The case of Supriyo & Anr. Union of India (2023) raised the question of “right to marry” of non- heterosexual couples and raised the matter of widening the scope of “spouse” in the Special Marriage Act, 1954.
The Government in its submission along with the National child rights body (NCPCR), and the Jamiat-Ulama-i-Hind to the Supreme Court expressed its inhibitions to legalise same-sex marriage describing it as an “urban elitist concept” earning criticism from all over the country. The critics and common man were of the view that the government completely ignored the fact that homosexuality is not an urban concept but is something which is very much there among closeted individuals who refuse to come out in fear of getting outcast in their own family and community. Decriminalisation has not led to the destigmatisation of same-sex relationships which calls for the legalisation of these marriages and giving the community the autonomy of choosing their partner and giving a more permanent name to their relationship and form a family and enjoy the benefits coming with it. The benefits are the basic rights to all individuals like life insurance, pension, getting a house together, adoption and access of regular services as given to the heterosexual couples.
Section 377 which criminalised homosexual intercourse came from a colonial law working against the constitutional basis of equality, privacy, and dignity of individuals. Section 377 was targeted against the LGBTQ community subjecting them to stigmatisation, and harassment barring them from living a peaceful life and respectful choice. Navtej Johar vs Union of India decriminalised “carnal intercourse stated against the order of nature” but the stigmatisation is still prevalent in the majoritarian society. The sustaining of this law for more than 130 years is proof of a major sect of people who still consider homosexuality as a mental illness which can be cured through therapy or medicines and is not considered natural. The concept of homosexuality is decriminalised but the stigma around it is still prevalent.
Article 14 of the Indian Constitution establishes the concept of equality and equal protection for all people without any discrimination based on sex, religion, caste, and creed. The concept of equality thereby gives equal rights to people to live their life by their choice and get equal opportunities and equal benefits arising out of those opportunities. Articles 14,19 and 21 of the Constitution are considered to be the “Golden Triangle” defining the basic structure of the Constitution. A person’s right to life does not only mean his mere existence but a life to live with dignity held in “Maneka Gandhi vs Union of India (1978) 1 SCC 248”. The right to live with dignity not only limits itself to food and shelter but it includes the right to choose and the right to form a family. The right of choice has gone through several judicial interpretations. It not only extends to heterosexual couples but also includes homosexual adults consenting to be in a stable relationship which not only limits their private spaces but is open about it even in the public domain.
The judgement in Maneka Gandhi established the “right to dignity” of an individual but the judgement of the Supreme Court in 2014 took a step back while interpreting the fundamental rights of individuals. In Suresh Kumar Koushal vs Naz Foundation (2014) 1 SCC 1, the Supreme Court decided against the provision of equality, autonomy, and dignity of individuals. The Koushal judgement lacked basic empathy for the community. The Supreme Court invalidated the independence of LGBT individuals from making personal choices about their lives, eliminating their freedom to love. The major issue involved in the case was whether Section 377 was an infringement of Articles 14,19 and 21. The court held that Section 377 was constitutionally valid and the judgement was criticized as a dark time for fundamental rights and their protection.
“Right to Privacy” is a fundamental right implied in Article 21 of the Constitution which talks about the Right to life and personal liberty”, held in the case of K. Puttaswamy vs Union of India (2017)10 SCC 1. The privacy of individuals was said to be protected under the golden triangle that is Article 14,19 and 21 and impliedly in Article 21 under the right to personal liberty. The Supreme Court stated that the right to privacy is a fundamental right flowing from the right to life and personal liberty as well as other fundamental rights securing individual liberty in the Constitution. Privacy itself was held to have a negative aspect, (the right to be let alone), and a positive aspect, (the right to self-development). The sphere of privacy includes a right to protect one’s identity. The right recognises the fact that all information about a person is fundamentally his/her own, and the person is free to communicate or retain it to himself. The landmark judgement gave the right of privacy to individuals especially same-sex couples who found themselves harassed unnecessarily by policemen and intrusive individuals in the premises of their houses or outside.
The Puttaswamy judgement led to a major turn of events where the Supreme Court agreed to hear the petitions of Naz Foundations for the decriminalisation of consensual sex between any two adults. The court also said that equality and prevention of discrimination applies to all citizens of the country and the protection of the fundamental rights of the LGBTQIA+ community lies at the core of Fundamental Rights. On 6 September 2018, the Court ruled in Navtej Johar vs Union of India that Section 377 was partly unconstitutional "in so far as it criminalises consensual sexual conduct between adults of the same sex". The judgement was given by a five judges bench comprising the then Chief Justice of India Dipak Misra, Justices R F Nariman, D Y Chandrachud, A M Khanwilkar and Indu Malhotra.
Whether the “right to marry” extends to non- heterosexual couples since the decriminalisation of consensual homosexual relationships?
Marriage as a concept in earlier times was said to be more important for procreation. However, with the evolution of time, it is now more about love, companionship and support with procreation coming secondary as its objective. As stated by Hon’ble CJI D.Y Chandrachud, “India is already in a state to recognize two consenting adults in a relationship not just a physical relationship but something more of a stable, emotional relationship who can marry.”
In the last 70 years, the law of the land has evolved therefore after the judgement of Navtej Johar, we just did not decriminalise homosexuality but also recognized the fact that these relationships are stable relationships like that of heterosexual adults who want to get the autonomy to choose their partners and live with them and call it a permanent them in the public sphere and get the rights coming with it.
In the last four years, there have been various petitions filed in courts for recognizing same-sex marriage as a marriage between two individuals who have independence and autonomy regarding their sexual orientation. There were various practical arguments against the legalisation stating that the consequences coming with the legalisation would change the entire concept of laws related to maintenance, marriage, inheritance and adoption.
The Supreme Court declined the “right to marry” as a fundamental right with the majority of 3:2. CJI Chandrachud and Justice Kaul ruled in favour of the petition stating that there is a need to recognise same-sex relationships as a progressive step towards the protection of the rights of the community. The Justices in opposition argued that the right to marry cannot be encompassed in the current Indian laws and would create a sense of instability of the judgement if pronounced in favour of the community. There needs to be a committee set up by the Central Government to ensure equality and equal protection of the community and prevent the harassment of such individuals. All the five judges agreed for the community to be granted equal rights and be protected by creating awareness and sensitivity through education to ensure their inclusivity in society. The Supreme Court urged the Central and State Governments to adopt legislations regarding the same.
In conclusion, it can be said that India still has a long way to go with regard to the rights of the LGBTQIA+ community. Decriminalisation of consensual sex does not stop the stigmatisation around it. Not criminalising it gives the right to the community to be set aside and have these relationships in their private sphere but ensuring their rights through a separate legislation will make them present in the public sphere and have those right a heterosexual couple have like buying a house together, opening a joint bank account, gratuity money, pension schemes, and the adoption rights Article 14 and Article 21 give individuals the right to live their life with dignity and this right extends to the marginalised community as well. The landmark judgements were a revolution in the law of the land and they paved the way for LGBTQ rights to come as a matter of utmost consideration. There is always a start to a major step to be taken. The Supreme Court denying the right to marry as a fundamental right to the community has however urged the Central Government to ensure the safety and easy access of services to the community and significant steps need to be taken regarding the same by the Government.
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