SUPREME COURT REFUSES TO LEGALLY VALIDATE SAME-SEX MARRIAGES, AS IT IS THE SUBJECT-MATTER OF THE LEGISLATURE

In a recent landmark judgment passed by a 5-Judge Constitution Bench of the Supreme Court comprising of the Chief Justice of India (CJI) DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat, Justice Hima Kohli and Justice PS Narasimha in the matter of Supriyo @ Supriya Chakraborty & Anr. vs Union of India Writ Petition (Civil) No. 1011 of 2022 and a batch of other Petitions on 17-10-2023, the Apex Court held that queer couples are entitled to rights, benefits and equal treatment as that of heterosexual married couples, however, the Supreme Court refused to legally validate same-sex marriages, as the same is the subject matter of the Parliament / Legislature.

Facts

(i) A three Judge Bench of the Supreme Court in an earlier case of Navtej Singh Johar v. Union of India (2018) 1 SCC 791, held that Section 377 of the Indian Penal Code 1860 (IPC) (Unnatural offences) is unconstitutional to the extent that it criminalizes consensual sexual activities by the LGBTQ (Lesbian, Gay, Bisexual, Transgender, Queer) community, on the ground that (a) Section 377 violated Article 14 of the Constitution, as it discriminated between heterosexual persons and non-heterosexual persons, although both categories of people engage in consensual sexual activities and (b) Section 377 IPC also violated Article 15 that prohibits discrimination based on ‘sex’ including sexual orientation. Referring to the LGBTQ community, Justice Chandrachud had observed that “the community does not face discrimination merely based on their private ‘sexual’ activities. It extends to their identity, expression, and existence. The Court declared that the members of the LGBTQIA+ community are entitled to the full range of constitutional rights including the right to choose whom to partner with…” The Apex Court further observed that it is the duty of the State to end the discrimination faced by the queer / questioning community.

(ii) But as per the Petitioners, who belong to the LGBTQ community, the State has continued to discriminate them by impliedly excluding the queer community from a civic institution, i.e. marriage. “They claim that the State ought to treat them on par with the heterosexual community.”

(iii) The observations of the CJI DY Chandrachud are as follows:

1) Under Article 32 of the Constitution, the Supreme Court not only has the power to strike down an offending statute or provision of law, but also to issue directions, orders, writs for enforcement of fundamental rights. In short, the Apex Court has the power to restrain the State from doing something that infringes the fundamental rights of people and also direct the State to act in a manner that gives effect to such fundamental rights.

2) Further, as per the Doctrine of Separation of Powers, the three organs of the State, namely, the Legislature (that drafts and formulates laws), the Executive (that executes or carries out the law) and the Judiciary (that interprets law, gives effect to it and decides if the law has been violated) perform their respective functions and further, they cannot perform the roles of any other arm of the State. “In other words, the functional understanding of the separation of powers demands that no arm of the state reigns supreme over another”.

3) Although separation of powers is a basic structure of the Constitution, but the power of courts to conduct judicial review is also a basic structure of the Constitution. Further, “The doctrine of separation of powers certainly does not operate as a bar against judicial review”. Hence, the Doctrine of Separation of Powers does not stand in the way of the Supreme Court issuing directions, orders, writs for enforcement of fundamental rights.

4) That queer persons have existed in India since ages and the global movement towards democracy has enabled and created the conditions for empowerment of queer persons across the world.

5) Further, there is no universal definition of marriage, as the concept of marriage is understood distinctively in law, religion and cultures. But the core components of a marriage include the following:

a) Marriage signifies a deep and abiding commitment to one another and a devotion to the relationship.

b) When two people marry, they intend to be in a life-long relationship.

c) Marriage is a gateway into the creation of a family through childbearing and childrearing, although it is not a precondition to the creation or existence of a family.

d) The sole purpose of marriage is not to facilitate sexual relations or procreation, although that may be one of the main motivations for entering into a marriage.

6) Hence, the Hon’ble CJI held that the argument of the Respondent- Government that the concept of marriage does not permit queer individuals to marry cannot be accepted, as “the inability of queer couples to procreate does not act as a barrier to the entry of queer persons to the institution of marriage just as it does not prevent heterosexual couples who are unable or choose not to procreate.”

7) The concept of marriage is not static and the only constant element across all types of marriages is a legally binding relationship that is legally recognised by law. The State confers legal recognition to a married relationship between two heterosexual persons and also grants innumerable benefits to a family unit constituted by marriage such as matrimonial and child care related benefits, property benefits, etc. Similarly, the Petitioners sought that the State grants legal recognition to the relationship between non-heterosexual persons in the form of marriage as they are otherwise excluded from the benefits of marriage.

8) One of the important reasons for the State to be involved in regulation of marriages and personal relationships was to remodel society, premised on the constitutional value of equality. Thus, the State prescribes various conditions for solemnization of valid marriage by way of formulating laws, etc such as minimum age of marriage, conditions of consent, etc. Further, the State also prescribes the grounds of divorce such as engaging in sexual conduct outside of marriage.

9) In short, “the State: firstly, prescribes conditions with respect to who can enter into a valid marriage; secondly, regulates the marital relationship during its sustenance; and thirdly, regulates the repercussions of the breakdown of a relationship of marriage.”

10) Thus, the involvement of State in regulating the institution of marriage is important to ensure equality in the personal sphere and in family life.

11) A nine-Judge Constitution Bench of the Apex Court in the matter of Justice K.S. Puttaswamy (Retd) vs Union Of India (2017) 10 SCC 1 had held that the right to privacy is a basic core fundamental right and is also a part of the right to life and personal liberty enshrined in Article 21 of the Constitution.

12_ The Hon’ble CJI in the present case observed that “the act of entering into an intimate relationship and the choices made in such relationships are also protected by the right to privacy.”

13) Further, Article 25 of the Constitution (Freedom of conscience and free profession, practice and propagation of religion) provides a right to freedom of conscience, which is available to all ‘persons’ and hence, is available to members of the LGBTQ community as well. It implies that “all persons, including members of the queer community, have the right to judge the moral quality of the actions in their own lives, and having judged their moral quality, have the right to act on their judgment in a manner they see fit”.

14) Furthermore, Article 15 of the Constitution states that no citizen shall be discriminated based on “religion, race, sex, place of birth, or any of them.” Hence, the protection against discrimination based on identity and sexual orientation under Article 15 is available to persons from queer community as well and any restriction on the right to enter into a union based on sexual orientation would violate Article 15 of the Constitution.

15) Thus, as per the fundamental rights codified in Part III of the Constitution, the Supreme Court held that all persons including persons in queer relationships have a right to enter into an abiding union with their life partner.

16) The Apex Court in an earlier case of National Legal Services Authority vs Union of India and others (2014) 5 SCC 438 recognized the right of transgender persons to be identified by the gender identity of their choice and they have to treated on equal terms with any other citizen of the country. Accordingly, the Legislature enacted the Transgender Persons Act 2019 to provide for the rights of transgender persons and their welfare. However, the said Act does not refer to sexual orientation but only to gender identity. A challenge against constitutional validity of the said Act is pending before the Supreme Court in a different matter.

17) Hence, the Apex Court is of the opinion that there is an urgent need for “a law which inter alia prohibits discrimination on the basis of sexual orientation and gives full effect to the other civil and social rights of LGBTQ persons. In the absence of such a law, members of the LGBTQ community will be unable to exercise their rights and freedoms to the fullest extent and will have to approach the courts for their enforcement on a case-by-case basis.”

18) Nevertheless, transgender persons in heterosexual relationships and intersex persons who identify as either male or female have the right to marry under existing law including personal laws which regulate marriage.

19) Therefore, the Hon’ble CJI has directed the Union Government, State Governments, and Governments of Union Territories to take steps to sensitise the public about queer identity and even directed the Police to not harass queer persons about their gender identity or sexual orientation, etc.

20) Lastly, “the Union Government, State Governments, and Governments of Union Territories shall not discriminate against the freedom of queer persons to enter into union with benefits under law.”

21) Further, the Ld. Solicitor General has assured that the Union Government will constitute a Committee chaired by the Cabinet Secretary for defining and clarifying the scope of the entitlements of queer couples who are in unions. The report of the Committee would then be implemented at the administrative level by the Union Government and the governments of the States and Union Territories.

iv) Further, Justice Sanjay Kishan Kaul observed that “The capacity of non-heterosexual couples for love, commitment and responsibility is no less worthy of regard than heterosexual couples”, thereby upholding the right of queer couples to be treated equally as that of heterosexual couples.

v) Justice S Ravindra Bhat and Justice Hima Kohli have also left it to the State to take remedial action with regard to equal treatment of persons belonging to the LGBTQ community with that of the heterosexual persons.

vi) Justice PS Narasimha observed with regard to the unavailability of certain benefits and privileges to LGBTQ+ partners, which are otherwise available to heterosexual married people, that “I am of the firm belief that a review of the impact of legislative framework on the flow of such benefits requires a deliberative and consultative exercise, which exercise the legislature and executive are constitutionally suited, and tasked, to undertake.”

Conclusion

Thus, based on the aforesaid observations, the Supreme Court held that LGBTQ+ people are entitled to rights, benefits and equal treatment as that of heterosexual married couple, however, the legislative scheme / enactment in that regard has to be formulated by the Legislature / Parliament and implemented by the Executive.

 

Harini Daliparthy

Senior Associate

The Indian Lawyer