Author Details:-
Ankur Vaibhav Gautam
2nd year LLB Student
Law centre-2, Faculty of Law
Delhi University.
SCC ONLINE SC 1348
ABSTRACT
The following writ petition in the supreme court is challenging the right to marriage of the same sex couple. The writ petition is filed by two same sex couples named Supriyo Chakraborty and Abhay Dang with Prarth Mehrotra and Uday Raj Anand. The petition challenges the constitutional validity of section 4(c) of Special Marriage Act,1954 which talks about the marriage only between a male and a female. A constitutional bench of the supreme court decided the case on 17th October 2023 with a majority opinion of 3:2 and upheld that the right to marry is not a fundamental right and section 4(c) of Special Marriage Act,1954 ( hereafter referred to as the Act ) is constitutionally valid.
FACTS OF THE CASE
The case background relates to the judgement of Navjot singh Johar v Union of India (2018)[1] where the court held same sex relationships as constitutionally valid and allowed the LGBTQIA+ individuals to get involved in the consensual intercourse but didn’t allow the individual with the right to marry. The present petition contends that the section 4(c)[2] of the Act violates the fundamental right of the LGBTQIA+ individuals as it discriminates between a hetrosexual couple and a non hetrosexual couple. The supreme court clubbed all the ongoing petition related to this issue from the high court to be viewed as together.
ISSUES PRESENTED
The present petition raises many important issues related to the rights of the LGBTQIA+ community in India.
- Is Right to marriage a fundamental right according to the constitution of India?
- Whether the provision of the Act holds a constitutional validity or not?
- Whether the non allowing of marriage to a same sex couple can be considered as the discrimination on the basis of gender and will amount to the violation of the fundamental rights of the LGBTQIA+ community?
- Whether an unmarried same sex couple had a right to adopt a child ?
ARGUMENTS BY PETITIONER
The petition contended that the right to marry someone is a fundamental right granted by the constitution of India and one is free to marry anyone whom he likes and wills to marry in respective of the caste, colour and gender. The petitioner also questioned the provisions of the Act which recognises marriage only between a male and a female which results in the violation of Article 14 of the Indian constitution which talks about the equality before law and equal protection of laws. The petitioner also states the problem faced by the same sex couple when it comes to taking the important decisions like health care, spouse benefits and inheritance rights which are very critical for a couple and their families.
ARGUMENTS BY RESPONDENT
The respondent contends that from ages the marriage is always a union of a male and a female, the very sole reason of marriage since the ancient times denoted procreation which is only possible in a hetrosexual couple. The respondent also contends that it is the duty of the parliament to make a decision on legalising same sex marriage or not. The right to marry does not come into the ambit of the fundamental rights provided to the citizens by the Indian constitution and the provision of the Act stands constitutionally valid.
RELEVANT LEGAL PROVISIONS
Article 14 of the constitution of India (Right to equality) which talks about each and everyone being equal in the eyes of law and any law which fails to protect the equality is a violation of Article 14[3]. Article 15 talks about the discrimination on the basis of sex, caste, colour and place of birth; the court had previously recognised the transgender as the third gender under Article 15 itself only. The court also emphasised Article 21 protecting the right to life and liberty of individuals and also the right to live with dignity and to marry a person of his choice. Section 4 of Special Marriage Act, 1954 laid down the conditions related to solemnisation of a special marriages in which sub section (c) only tells the valid marriage between a male attained the age of 21 years and a female attained the age of 18 years not including the individuals belonging to the LGBTQIA+ community.
Is there a right to marry?
The petitioner relied on the judgement of the USA supreme court where the right to marry is regarded as the fundamental right but the court of India does not recognise the right to marry as a fundamental right the supreme court held that the right to marriage is a matter of personal choice and will not come it the category of the fundamental rights rather it’s is a statutory right given by a particular statue in our country. But in India however a transgender person who is in a hetrosexual relationship can marry the person under the existing family laws which prevail in India. All the five judges in the constitutional bench rejected the appeal of the petitioner to recognise the right to marry as fundamental rights.
DECISION OF THE COURT
The supreme court in the majority of 3:2 refused the plea of the petitioner to grant the same sex marriage a legal status and leave it to the parliament to decide the whether to legalize the same sex marriage in India or not. The majority also recognised the constitutional validity of the section 4(c) of the Special Marriage Act, 1954 and said it does not volites any fundamental right of the LGBTQIA+ community and the section stands constitutional valid. The same sex couples have other alternatives available to them such as live in relationship and civil partnership. The court distinguished between a person’s right to choose a partner and right to marry. The court said that a person is all free to choose with whom they want to live with but it does not amount to the right to marry. The court also ordered the formation of a committee to determine the rights of the LGBTQIA+ committee and held that the report submitted by the committee shall be implemented by the union government.
DISSENTING OPINION
Justice Chandrachud and Justice Kaul in the minority opinion said in the favour of the same sex marriage. The chief justice relied on Article 15, 19(1) and 21 of the constitution. Although he was with the majority on the first issue and said that the right to marriage can’t not be recognised as a fundamental right, he had a dissenting opinion on recognising the marriage rights of the members of the LGBTQIA+ community. He focuses on the idea that the right to enter into a union cannot be restricted based on the gender of a person; such restrictions violate Article 15 of the Indian constitution. He also questioned the constitutional validity of the Special Marriage Act because of its institutional limitations.
SOME IMPORTANT CASE LAWS
Justice KS Puttaswamy (retd) v. Union of India (2017) [4]
This is a landmark judgement which recognises the right to privacy of a person as a fundamental right which also includes all the personal choices concerning marriages under the personal dignity. The court also ruled that if a person does not fit into a binary of a male and female would be recognised as the third gender person and shall be granted all rights protected by the constitution of India.
Navtej Singh Johar v. Union of India (2018)
The court in the case declared section 377 of Indian penal code, 1860 unconstitutional as upto a certain extent it violates Article 14, 15, 19 and 21 of the constitution. The court decriminalised consensual sexual relationships between adults, including the homosexual sex. However the sex with the minors and non consensual sex still remains in force.
Shakti Vahini v. Union of India (2018) [5]
This case grants the freedom to a person to choose a life partner of his choice and it can be a part of the fundamental rights granted by Article 19 and 21 of the constitution. It also laid down that the two adults have a right to marry each other if they want so irrespective of their caste, colour and religion.
CRITICAL ANALYSIS
The decision of the apex court in Supriyo v Union of India will surely give a major blow to the LGBTQIA+ community in India. The court recognises the marriage as a social institution with its own legal requirements for constitution of a valid marriage. The case also has a legal angle where the court cited limitations upon its jurisdiction over the legislature power of the parliament. Although the court in the majority opinion rejected the plea but I find the minority opinion more relevant and reliable the reasoning given by Justice Chandrachud and Justice Kaul are more of a ray of hope to the LGBTQIA+ community for that maybe one day the court could legalise same sex marriage in India. The dissenting judges recognised that same sex couples have equal right to marriage as a hetrosexual couples and making any disparity on the basis of gender would be the violation of Article 15 of the constitution.
CONCLUSION
The judgement of this case is a mixed bag. It is a setback for the LGBTQIA+ community, although the court recognises the significant rights of the LGBTQIA+ community but have not given the legal status to their union. The court highlights the need of a legislative action to recognise the rights of same sex couples in India. The court and the government need to come forward and to take steps for the larger good of marginalised communities as well. There is a need to create a more inclusive society by providing equal rights regardless of anyone’s gender.
REFERENCES:
[1] Navtej Singh Johar and Ors. v. Union of India (2018) 10 SCC 1
[2] Special Marriage Act,1954
[3] Constitution of India,1950
[4]Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) 10 SCC 1
[5]Shakti Vahini v. Union of India (2018) 7 SCC 192
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