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Supriyo @ Supriya Chakraborty & Anr. vs Union of India

Writ Petition (Civil) · 2023 INSC 920Decided 17 Oct 2023
Writ Petition (Civil) No. 1011 of 2022

Background

A batch of 21 petitions (originally filed as individual writ petitions and transferred cases from various High Courts) sought legal recognition of same-sex marriage under the Special Marriage Act, 1954, the Foreign Marriage Act, 1969, and other personal laws, either by reading these statutes in a gender-neutral manner or by recognising a fundamental right to marry irrespective of sexual orientation. Petitioners argued that denial of legal recognition to queer relationships deprived them of a "bouquet" of tangible and intangible benefits available to married heterosexual couples (adoption, insurance, banking nomination, inheritance, medical decision-making, etc.) and violated their rights to equality, dignity, and autonomy. The Union of India opposed the petitions, arguing that marriage is a matter for the legislature and that recognising same-sex marriage would require restructuring an entire web of personal and general laws.

Decision Breakdown

All five judges agreed unanimously on certain points: there is no unqualified/fundamental right to marry under the Constitution; the Special Marriage Act cannot be struck down or judicially read down to include same-sex couples (that would amount to judicial legislation, properly left to Parliament); and transgender persons in heterosexual relationships already have the right to marry under existing law. On the central question of whether the State must legally recognise queer "civil unions" short of marriage, the Court split 3-2. The Chief Justice and Kaul, J. (minority on this point) held that the freedom to enter into a union is protected under the Constitution and that the State has a positive obligation to recognise such unions and confer entitlements flowing from them, and issued detailed directions (non-discrimination, no forced "conversion treatment," safe houses, police conduct rules) plus recorded the Union's assurance to set up a Cabinet-Secretary-led committee to examine entitlements for queer couples. Bhat, J. (joined by Kohli, J., and separately by Narasimha, J. : the effective majority) agreed that queer couples face real, unjust discriminatory impact in accessing benefits tied to marital status, and that the State must remedy this, but held that the Court cannot itself direct creation of a new legal status like "civil union," since that would require the Court to legislate and violate separation of powers: that task belongs to Parliament and the Executive. All five judges' directions converged on setting up the high-powered committee to study entitlements, and on protective directions for the queer community (against harassment, forced "conversion" therapy, discrimination in goods/services).

Lesson Learnt

The Supreme Court unanimously declined to create a right to same-sex marriage or direct Parliament/the State to legislate civil unions, holding this is a matter for elected lawmakers, not courts; however, it unanimously recognised that queer persons and couples do suffer real, unjust discrimination in everyday life and directed the Union Government to set up a committee to examine what legal protections and benefits can be extended to them administratively, meaning any further legal recognition of same-sex relationships in India now depends on legislative and executive action, not judicial fiat.

Official source (sci.gov.in)View Judgment (PDF)

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