Supriyo @ Supriya Chakraborty & Anr. v Union of India[1]
Judgement: 17/10/2023
Judges: Justice D.Y Chandrachud, Justice S.R Bhatta, Justice S.K Kaul. Justice Narasimha, Justice Hima Kohli

Facts:
Two same-sex couples filed a writ petition on November 14, 2022, in the Supreme Court seeking legal recognition of same-sex marriage under the Special Marriage Act of 1954 in India. The leading petitioners were Supriyo Chakraborty and Abhay Dang.

• Petitioners submitted that the non-recognition of same-sex marriage under the Act is an act of discrimination since Section 4(c) of the Act only allows marriage between a male and female.
• Following this, on November 25, 2022, CJI DY Chandrachud and Justice Hima Kohli directed the Union to respond to the petitions.
• On January 6, 2023, a 3 bench constituting of Justice CJI D.Y. Chandrachud, Justices P.S. Narasimha, and J.B. Pardiwala transferred 9 petitions from Delhi and Kerala High Courts to itself which pertained to the same issue.
• The 3 bench then transferred the case to a 5-judge Constitution Bench to hear the case which went on for 10 days of hearing.

Issue raised:

1. Constitutionality of section 4(c) of the Special Marriage Act

Is Section 4(c) of the Special Marriage Act which recognizes marriage solemnly between a 'male' and 'female' violative of the fundamental right of the same-sex couple under the Constitution?

2. Fundamental rights:

Do same sex couple have fundamental right to marry under Article 14, 19 and 21 of the Indian Constitution?

Arguments by the Petitioners:

• The petitioners contended that Sec 4(c) of the Special Marriage Act discriminates against the same sex based on their gender as it only recognizes marriage between a 'male' and a 'female'. This denies them the right to marry and other matrimonial benefits such as adoption, surrogacy, etc.
• They argued that the non-recognition of same sex marriage is deemed to be violative of their fundamental rights which include Articles 14, 19, and 21.

Arguments by the Respondent:

• The respondent side contended that the meaning of marriage has always been traditionally understood as a heterosexual union and hence any significant change in the definition is under the jurisdiction of the legislative body, not the judiciary. The judiciary can only interpret it.
• They also argued that any possible change in the definition of marriage or even the recognition of same sex marriage will have major consequences and societal impact.

Ratio decidendi:

• Constitutional rights and social change:
• The Supreme Court held that the right to marry is a fundamental part of right to life which is embedded in Article 21 of the Indian Constitution. This right is available to every individual despite of their sexual orientation. Recognition of the dignity of the LGBTQ+ stands as a significant step towards societal evolution. The court also emphasized on considering the contemporary needs and values in framing laws.
• Legislature's role:
• The Court did recognize the significance and importance of same-sex relationships and the rights of the LGBTQ+ community but it perspicuously asserted that recognition of same sex marriage needs a comprehensive legal framework that involves complex policy decisions which fall under the jurisdiction of the legislative rather than the judiciary.

Judgment
The bench constituting 5 judges unanimously held that the court cannot recognize the legality of marriage between a same-sex couple under the Special Marriage Act and also held that the right to marry as such is not a fundamental right under the Indian Constitution. The court also shed light on the fact that any legal recognition of same-sex marriage is a domain of legislature as they can only come up with any possible policies to address the issue rather than the judiciary. The court did recognized the changing of societal attitudes towards the same sex relationship and the need for a comprehensive legislative action in recognizing the legality.

Conclusion
The judgment underscored the limited intervention of the judiciary in the recognition of same-sex marriage and shifted the responsibility to the legislature for coming up with some probable solution to address the issue. In today's era where people have started changing their attitudes towards the rights of the LGBTQ+ community, the ruling could lead to additional discussions and legislative acts about the acceptance of same-sex unions and more extensive LGBTQIA+ rights in India.

End Notes:

1. 2023 INSC 920