DATE OF JUDGEMENT: 17^th October, 2023

PETITIONER: Supriya Chakraborty &Anr.

RESPONDENT: Union of India

BENCH: CJI D.Y.  Chandrachud, Justice S.K. Kaul, Justice Ravindra Bhat, Justice Hima Kohli, and Justice P.S. Narasimha

CITATION: W.P.(C) No. 1011/2022 Diary No. 36593/2022

INTRODUCTION

There are significant issues pertaining to the rights of LGBTQIA+ people in India raised by the current batch of writ petitions and transfer cases. To have a complete picture of the situation, it is important to first grasp certain important details regarding the petitioners and the arguments they have brought up. Lesbian, homosexual, bisexual, and transgender (LGBTQIA+) individuals are among the petitioners, who have addressed the Hon. Supreme Court to request legal recognition of their relationships. It will be easier to understand the discrimination they have endured as a result of this lack of acknowledgment if you take a quick look at their lives and difficulties. A well-known individual is among the petitioners; she has candidly discussed how her gender identification has caused her to be shunned by her family and to be alone in society. She has bravely spread the word about the rights of transgender people. Another petitioner, who resides in a small town, describes how she encountered social rejection for her attraction to other people of the same sex. These incidents highlight the difficulties brought on by the lack of acceptance of LGBTQIA+ people.

The petitioners argue that certain sections of the Hindu Marriage Act of 1955, the Special Marriage Act of 1954, and the Foreign Marriage Act of 1969 violate their fundamental rights to equality, a life with dignity, freedom of expression, and religion because they do not recognize marriages between people of the same sex and gender identity. They contend that the fact that LGBTQIA+ people are not included in these marriage regulations amounts to an indirect form of discrimination against them because of their gender identity and sexual orientation. They contend that a fundamental component of the personal liberty protected by the Constitution is the ability to marry whoever one chooses. Also the petitioners have questioned certain of the provisions of the Juvenile Justice Act, 2015, which mandate that married couples adopt children; this essentially excludes live-in partners and same-sex couples from the adoption pool. They have claimed that these regulations violate children’s and LGBTQIA+ people’s rights. Additionally, several petitioners have brought up the concern of being in same-sex partnerships and experiencing violence and pressure from their natal families. They are asking for protection of their life and liberty in this regard.

In the context of the rights of LGBTQIA+ people, the issues include the interpretation of fundamental rights such as the right to equality, life with dignity, freedom of speech and expression, freedom of religion, and freedom of movement as guaranteed by Articles 14, 15, 19, and 21 of the Constitution. It is necessary to determine whether the marriage statutes’ exclusion of same-sex partnerships and marriages from their purview constitutes discrimination based on gender identity and sexual orientation. It also calls for an examination of whether or not this kind of exclusion violates people’s right to privacy, which allows them to make personal decisions without worrying about the approval of others.  The petitions, which address the institution of marriage itself and its significance to various societal groups, have far-reaching implications. On the one hand, a ruling that legalizes same-sex unions would protect LGBTQIA+ people’s freedom to select a spouse without facing discrimination. However, it might encounter resistance from individuals who think that a marriage should only ever be between a man and a woman. When making its decision, the Court will have to weigh these conflicting assertions.

The issues take on significant importance in light of the landmark Navtej Singh Johar ruling from 2018, which decriminalized consenting homosexual conduct. Despite this, discrimination against members of the community persists. Although the stigma associated with homosexuality was removed by the ruling, social acceptance of the practice is still developing. When the Supreme Court rules on the issue of marriage rights, it will advance equality by guaranteeing that members of the LGBTQIA+ community can take advantage of all the advantages that come with being part of a legally recognized relationship. At the same time, the Court will have to carefully consider the range of opinions that exist in society about this delicate subject while crafting its orders. Considering the aforementioned, it is clear that the petitions concern figuring out how much constitutional protection LGBTQIA+ people’s rights have, particularly when it comes to marriage. They give the Supreme Court a chance to uphold the freedom to make private decisions without worrying about repercussions while acknowledging the complex societal reality. How the Court strikes a compromise between social conservatism and civil liberty in this eagerly anticipated decision is still up for debate. Making a wise choice will contribute to the legal equality of people of all genders and sexual orientations.

FACTS OF THE CASE

Lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQIA+) rights and the Indian constitution are the subjects of the current batch of writ petitions. This factual background of these petitions’ filing must be understood from the beginning. According to an analysis of the documents, discrimination and persecution against the LGBTQIA+ community have always existed in India. According to section 377 of the Indian Penal Code, any sexual behavior that was “against the order of nature” was prohibited for almost a century. The authorities violated the fundamental dignity and autonomy of LGBTQIA+ people by using this colonial provision. Many faced legal action, social exclusion, and public mockery simply for being in consenting same-sex relationships. The LGBTQIA+ community was always afraid that they would be prosecuted because of their sexual orientation. Their mental health suffered greatly as a result, and they were unable to live as equal citizens in freedom.

A number of petitions contesting section 377’s constitutionality were filed with the Delhi High Court in 2009. There was a claim that making private homosexual behaviour between consenting people illegal went against basic freedoms including privacy, life, and liberty. In the historic Navtej Singh Johar ruling of 2018, a five-judge Supreme Court bench unanimously overturned section 377 following a ten-year legal struggle. Same-sex partnerships were no longer illegal as a result, but oppression and prejudice persisted in other ways. Members of the LGBTQIA+ community who continue to experience economic, social, and political marginalization due to their gender identity and sexual orientation are the petitioners in this case. Authorities from the state and society as a whole deny them equal status and subject them to violence. For example, the transgender community does not have enough access to healthcare, education, or work prospects. They frequently have to perform sex work in order to survive. The LGBT community is routinely the target of violence by the police and prison staff, who get away with it.

LGBTQIA+ people struggle on a deeper level with social and familial rejection. Many are forced by their own families into marriages or treatment facilities. Their privacy is breached and their movements are tracked. The petitioners contend that the state’s failure to acknowledge their relationships is the root of this. Even if same-sex relationships are acceptable, they are not permitted to get married or form official domestic partnerships. The petitioners have contested this exclusion from the provisions of the Foreign Marriage Act of 1969 and the Special Marriage Act of 1954, which regulate civil marriages for people who cannot access religious ceremonies. They argue that this infringes upon their fundamental rights to privacy, freedom of expression, equality, life, liberty, and dignity. They lose out on social welfare benefits linked to marital status as a result. Under these statutes, the petitioners seek recognition of their relationships and a declaration of their right to marry. This succinct historical history gives the context needed to comprehend the types of claims and reliefs requested in the current batch of petitions. It draws attention to the lengthy history of discrimination against the LGBTQIA+ community as well as current problems with prejudice in society, rejection from family, and a lack of legislative protections that keep people from enjoying a dignified life as equal citizens. The Supreme Court has been consulted by the petitioners as a final resort to address these infringements on their basic rights.

ISSUES OF THE CASE

The present writ petitions raise important issues concerning the rights of LGBTQIA+ individuals in India. The petitions challenge discriminatory laws and seek remedies from the Supreme Court.

Here are the key issues raised for consideration:

• Do members of the LGBTQIA+ community have the fundamental right to choose a partner, including a partner of the same sex or gender? The petitioners argue that restricting this choice based on sexual orientation or gender identity violates Articles 14, 15, 19, and 21 of the Constitution.
• Do LGBTQIA+ individuals have the right to enter into a union with a partner of their choice and receive legal recognition of such unions? The denial of recognition is argued to infringe upon the petitioners’ rights to dignity, expression, and life with their loved ones.
• Are provisions of the Special Marriage Act that do not recognize same-sex marriages unconstitutional? The petitioners claim this exclusion violates rights to equality and non-discrimination.
• Is the Foreign Marriage Act unconstitutional in not recognizing overseas marriages of LGBTQIA+ citizens of India? This is contended to deprive citizens of their right to marry and violate Articles 14, 15, 19 and 21.

ARGUMENTS FROM PETITIONER

The petitioners have made several well-reasoned arguments before the Hon’ble Court in support of their case. They contend that the exclusion of LGBTQ individuals from the institution of marriage violates fundamental rights guaranteed under Part III of the Constitution.

First, the petitioners argue that choosing a life partner is a part of the freedom to life and personal liberty guaranteed by Article 21. They argue that when people are able to find and pursue a committed relationship of their choosing, they can develop as individuals and realise their full potential. When LGBTQ people are denied the chance to marry simply because of their sexual orientation or gender identity, this essential aspect of personhood is violated.

Secondly, the petitioners argue that the Special Marriage Act and other marriage laws that exclude same-sex couples from their legal protections violate Article 14’s guarantees of equality before the law and equal protection under the law. Although sexual orientation is a legitimate categorization, heterosexual and gay people do not differ in any way that would justify treating them differently when it comes to marriage. Furthermore, this discrimination accomplishes no justifiable state goal.

Thirdly, the petitioners contend that the denial of marital rights amounts to an unjustifiable limitation on the freedoms of association and assembly under Article 19(1)(b) and speech and expression under Article 19(1)(a). A relationship is a type of expression and personal bond that should be safeguarded. The state has failed to provide evidence that excluding LGBTQ couples from getting married is a justifiable limitation serving the interests of the broader public.

Fourthly, the petitioners contend that the prohibition on same-sex unions violates LGBTQ people’s Article 21 right to dignity. It denies them the right to openly commit to their relationships and considers them as morally inferior persons. The state cannot argue that marriage must continue to be heteronormative or that LGBT partnerships do not deserve legal recognition.

The petitioners ask that this Honorable Court uphold the rights of LGBTQ people to get married and engage in committed partnerships of their choosing in light of these thorough and well-reasoned arguments. They have made a compelling initial argument for relief, thus the case has to be taken into account.

ARGUMENTS FROM RESPONDENTS

The case’s respondents presented a number of arguments opposing the legal recognition of same-sex unions and gay partnerships. Their main argument was that marriage is an institution that has historically only been associated with a man and a woman. They contended that procreation—which is only feasible in heterosexual relationships—is one of the fundamental goals of marriage. Others, however, drew attention to the fact that having children is not a prerequisite for marriage and that many heterosexual unions do not produce children. The respondents further claimed that the institution of marriage plays a crucial role in both upholding and advancing society. They contend that relationships are only acknowledged and regulated by the State when a valid public interest is at stake. They held that the legal recognition of opposite-sex relationships for procreation serves the interests of the State and assures society’s survival. Critics drew attention to the fact that many States throughout the world have surpassed these limited goals and are now equally protecting a variety of family structures.

JUDGEMENT

The case’s judgement section offers a comprehensive and in-depth examination of the arguments put out by each party. The Chief Justice led the Supreme Court bench in assessing the comments from more than thirty attorneys who represented respondents, intervenors, and petitioners. The court acknowledged the fundamental rights of LGBTQIA+ people to establish unions of their choosing and to pursue equal treatment under the law in a historic decision. The judges balanced a number of legal and social considerations while acknowledging the stigma and discrimination the minority experienced. Let’s take a closer look at the main components of the well-reasoned decision.

First of all, the Court acknowledged the variety of the Indian gay community. It was mentioned that LGBTQIA+ identities have long existed in our nation and are not a recent phenomenon. Texts from antiquity and history relate to “third-gender” individuals and same-sex partnerships. However, colonial laws imposed a foreign morality and criminalized such partnerships, like as Section 377 of the IPC. The ruling also made clear that queerness is not exclusive to cities and that it transcends class, religion, and geography.

The Court explored the meaning of important constitutional notions such as life, liberty, dignity, equality, freedom of speech and expression, and right to residency while considering the ability to establish “unions.” It held that these fundamental rights are violated when same-sex relationships are denied legal status. The bench also concurred with the petitioners that the right to select a partner and pursue fulfilment via a close relationship is an essential component of the “right to life.” The judges next turned their attention to marriage as an institution. They arrived at the thorough conclusion that marriage is a notion that is always evolving and is defined variously in personal, religious, and legal contexts. The consenting partners determine what defines a marriage; there is no uniform definition. The law acknowledges it as a legitimate union as long as the requirements are satisfied. The choice of material and goal is personal.

This landmark decision establishes the long-needed precedent for an inclusive society founded on equality under the constitution. It will significantly contribute to the queer community’s rights being upheld and increased social acceptance. Even though there is still a long way to go before there is no discrimination, the ruling has planted the seeds for a just future in which everyone can live and love with dignity. With this groundbreaking decision, the Court has protected the spirit of fairness.

ANALYSIS

Kartik Kalra criticized the Court’s denial of a basic right to marriage, claiming that the denial is based on three erroneous standards: a right that existed before the state, a right that is undefined due to state action, and a right that is interwoven with limitations imposed by tradition or religion. He contended that the Court’s liberal approach in identifying a number of unenumerated rights as fundamental—such as the right to growth, education, and a clean environment—contradicts these norms, which have no precedent.

Kartik Kalra questioned the importance of the right to marry, arguing that rather than establishing the existence of a particular right, the inquiry should be whether official action violates fundamental rights.