Constitution Bench affirms queer persons’ right to intimate association and protection from discrimination, holds Special Marriage Act not violative but directs government to address legal recognition and adoptive rights for queer couples
In a landmark Constitution Bench judgment delivered on October 17, 2023, the Supreme Court of India addressed the complex and sensitive issue of marriage rights for LGBTQ persons, legal recognition of same-sex unions, and related adoption rights. The case, Supriyo @ Supriya Chakraborty & Anr. v. Union of India, was extensively argued by senior advocates on both sides, encompassing constitutional law, personal laws, social realities, and international precedents.
Key Highlights:
1. Right to Marry Not Fundamental but Right to Union Affirmed
The Court held that the Constitution does not expressly recognize a fundamental right to marry, nor can marriage be elevated to that status solely based on the benefits it confers. However, it recognized a fundamental constitutional right of all persons, including queer individuals, to enter into an intimate union or abiding cohabitational relationship protected under Articles 14, 15, 19, 21, and 25. This right includes the freedom to choose a partner, dignity, privacy, and protection from discrimination or coercion.
2. Special Marriage Act (SMA) and Foreign Marriage Act (FMA) Are Not Unconstitutional
The Court examined the provisions of the Special Marriage Act, 1954, and Foreign Marriage Act, 1969, and found that they regulate marriage strictly as a heterosexual union. The Court declined to read these laws in a gender-neutral manner to include same-sex marriages, citing institutional limitations and the risk of judicial legislation. It emphasized that the power to legislate marriage equality lies with Parliament and State legislatures, not the judiciary.
3. Discriminatory Impact of Non-Recognition
While the Court did not strike down the SMA or FMA, it acknowledged the discriminatory impact on queer couples who cannot marry under the current legal framework. This exclusion deprives them of numerous tangible benefits such as succession rights, maintenance, insurance, and social welfare entitlements that flow from legally recognized marriage.
4. Adoption Rights and CARA Regulations
The Court struck down as unconstitutional the provisions in the Central Adoption Resource Authority (CARA) Regulations which barred unmarried couples, including queer couples, from jointly adopting children. It held that the Juvenile Justice Act does not preclude unmarried couples from adopting, and the restrictive regulations exceeded the scope of delegated legislation and violated Articles 14 and 15. The Court read down the word “marital” to include unmarried couples and directed CARA to frame adoption criteria based on the best interest of the child without discrimination based on sexual orientation.
5. Transgender Persons in Heterosexual Relationships
The Court unanimously agreed that transgender persons in heterosexual relationships have the right to marry under existing personal laws and the Transgender Persons (Protection of Rights) Act, 2019. It upheld the rights of transgender persons against discrimination and emphasized that existing laws must be interpreted harmoniously with the rights guaranteed under the Transgender Persons Act.
6. Directions to the Government
The Court issued detailed directions to the Union Government, State Governments, and Union Territories to:
- Prevent discrimination against queer persons in access to goods, services, and public spaces;
- Undertake public sensitization campaigns about queer identity;
- Establish hotlines and safe houses (Garima Grehs) for queer persons facing violence;
- Prohibit and cease conversion therapies and forced medical procedures on intersex and transgender persons;
- Recognize self-identified gender without coercion;
- Include modules on queer mental health in government programs aimed at suicide prevention;
- Instruct police to protect queer persons from coercion and violence, and prevent harassment or forced return to natal families.
7. Formation of a High-Powered Committee
The Solicitor General assured the Court that the Union Government will constitute a Committee chaired by the Cabinet Secretary with members from queer communities and experts. The Committee will define the scope of entitlements for queer couples in unions, including family recognition for ration cards, joint bank accounts, medical decision-making, jail visitation, succession, maintenance, and employment benefits.
8. Recognition of the Historical and Social Reality of Queerness in India
The Court rejected arguments that queerness is un-Indian or an imported concept, citing historical, cultural, and anthropological evidence showing that queer identities and unions have existed in India since ancient times across social classes and regions.
9. Institutional Limitations of the Judiciary
The Court emphasized the constitutional principle of separation of powers, holding that while it can enforce fundamental rights and issue directions to prevent discrimination, it cannot legislate or rewrite statutes such as the SMA to include same-sex marriage. Such substantive policy decisions are the prerogative of the legislature.
10. Call for Legislative Action
The Court urged Parliament to enact legislation recognizing same-sex marriages or unions and protecting the rights of queer persons comprehensively, including anti-discrimination protections based on sexual orientation and gender identity.
The judgment marks a significant step forward in affirming the dignity, liberty, and equality of LGBTQ persons under the Constitution of India, while respecting democratic processes and legislative authority. It balances the recognition of constitutional rights with institutional restraint and calls on the State to address legal and social discrimination faced by queer communities.
Statutory provisions Articles 14, 15, 19, 21, 25 of the Constitution of India; Special Marriage Act, 1954 (Sections 2, 4, 19-21A, 27, 31, 36, 37); Foreign Marriage Act, 1969 (Sections 4, 13, 17); Juvenile Justice (Care and Protection of Children) Act, 2015 (Section 57); CARA Adoption Regulations (Regulation 5); Transgender Persons (Protection of Rights) Act, 2019 (Sections 2, 3, 8, 11, 18); Indian Succession Act, 1925; Hindu Succession Act, 1956; Mental Healthcare Act, 2017 (Section 29); Indian Evidence Act, 1872 (Section 112).
