# CASE DETAILS SUPRIYO @ SUPRIYA CHAKRABORTY & ANR v. UNION OF INDIA

- **Citation:** 2023 INSC 920
- **Court:** Supreme Court of India
- **Decided:** 2023-10-17
- **Bench:** Dr. Dhananjaya Y Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-supriyo-supriya-chakraborty-anr-v-union-of-india-37144
- **Pages:** 316

## Headnote

Issues for consideration: The issues were primarily two-fold: (a) the
status of the right to marry for LGBTQ+ couples and (b) depending upon
the answer to the fi rst, the remedy that must ensue.
The petitioners (members of LGBTQ community)asserted that
marriage is an evolving social institution, capable of embracing the union
of two willing non-heterosexual, queer or LGBTQ+ (used interchangeably)
individuals and necessitating state recognition. On the other, the respondents
asserted that the institution of marriage rests on certain constant and
unchanging premises, the most prominent of which is that it is a heterosexual
union. The common ground on which the petitioners claimed relief was
that LGBTQ+ persons are entitled to solemnize and register their marriage
- in other words, they claimed a right to legal recognition of their unions
within the marriage fold. The petitioners relied on fundamental rights to
equality and non-discrimination, of dignity and autonomy and of expression
and association, and specifi cally, most petitioners focused on Section 4(c)
of the Special Marriage Act, 1954 (SMA) as well as the fi rst and second
schedules thereof, to state that particular references to "husband" or "wife"
in its provisions are to be read "down", and a neutral expression needs to
substituted, instead. The issue was whether the Special Marriage Act, 1954
is violative of Articles 14, 15, 19, 21, and 25 of the Constitution insofar as
it does not provide for the solemnization of marriage between same-sex,
gender non-conforming or LGBTQ couples.
Ed. Note: Separate judgments were pronounced by Hon'ble Dr. Dhananjaya Y. Chandrachud,
Chief Justice of India, Hon'ble Mr. Justice Sanjay Kishan Kaul, Hon'ble Mr. Justice S.
Ravindra Bhat (on behalf of himself and Hon'ble Ms. Justice Hima Kohli) and Hon'ble Mr.
Justice Pamidighantam Sri Narasimha.
SUPREME COURT REPORTS
[2023] 16 S.C.R.
1210
Some of the prayers also related to the right of such couples to
adopt under existing laws in India. The issue was whether Regulations
5(2)(a) and 5(3) read with Schedules II, III and VI of the Adoption
Regulations framed by the Central Adoption Resource Authority
(CARA) are unconstitutional and ultra vires the Juvenile Justice (Care
and Protection of Children) Act, 2015 insofar as they exclude LGBTQ
couples from joint adoption.
Also, extensive submissions were advanced on the various forms of
violence and discrimination that society and the state machinery infl ict upon
the queer community, and especially queer couples; and directions were
sought to obviate such violence and discrimination.
Marriage - Conception and signifi cance of - Right to marriage -
Status of - If a fundamental right - Conferring legal status for union
or relationship - Prerogative of legislature or court:
Held [per S. Ravindra Bhat, J. (for himself and Hima Kohli, J.)]:
Marriage as an institution is prior to the State, i.e., it precedes it - The status
is still, not one that is conferred by the State (unlike the license regime in
the US) - The marriage structure exists, regardless of the State, which the
latter can utilise or accommodate, but cannot be abolished as a concept -
Under this view, terms of marriage are set, to a large extent, independently
of the State - Its source is external to the State - That source defi nes the
boundaries of marriage - This implies that State power to regulate marriage
does not sit easy with the idea of marriage as a fundamental right - There is
no unqualifi ed right to marriage except that recognised by statute including
space left by custom - Civil marriage or recognition of any such relationship,
with such status, cannot exist in the absence of statute - An entitlement to
legal recognition of the right to union - akin to marriage or civil union, or
conferring legal status upon the parties to the relationship can be only through
enacted law - A sequitur of this is that the court cannot enjoin or direct the
creation of such regulatory framework

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[2023] 16 S.C.R. 1209 : 2023 INSC 920
1209
CASE DETAILS
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR.
v.
UNION OF INDIA
(Writ Petition (Civil) No. 1011 of 2022)
OCTOBER 17, 2023
[DR. DHANANJAYA Y CHANDRACHUD, CJI,
SANJAY KISHAN KAUL, S. RAVINDRA BHAT, HIMA KOHLI
AND PAMIDIGHANTAM SRI NARASIMHA, JJ.]
HEADNOTES
Issues for consideration: The issues were primarily two-fold: (a) the
status of the right to marry for LGBTQ+ couples and (b) depending upon
the answer to the fi rst, the remedy that must ensue.
The petitioners (members of LGBTQ community)asserted that
marriage is an evolving social institution, capable of embracing the union
of two willing non-heterosexual, queer or LGBTQ+ (used interchangeably)
individuals and necessitating state recognition. On the other, the respondents
asserted that the institution of marriage rests on certain constant and
unchanging premises, the most prominent of which is that it is a heterosexual
union. The common ground on which the petitioners claimed relief was
that LGBTQ+ persons are entitled to solemnize and register their marriage
- in other words, they claimed a right to legal recognition of their unions
within the marriage fold. The petitioners relied on fundamental rights to
equality and non-discrimination, of dignity and autonomy and of expression
and association, and specifi cally, most petitioners focused on Section 4(c)
of the Special Marriage Act, 1954 (SMA) as well as the fi rst and second
schedules thereof, to state that particular references to "husband" or "wife"
in its provisions are to be read "down", and a neutral expression needs to
substituted, instead. The issue was whether the Special Marriage Act, 1954
is violative of Articles 14, 15, 19, 21, and 25 of the Constitution insofar as
it does not provide for the solemnization of marriage between same-sex,
gender non-conforming or LGBTQ couples.
Ed. Note: Separate judgments were pronounced by Hon'ble Dr. Dhananjaya Y. Chandrachud,
Chief Justice of India, Hon'ble Mr. Justice Sanjay Kishan Kaul, Hon'ble Mr. Justice S.
Ravindra Bhat (on behalf of himself and Hon'ble Ms. Justice Hima Kohli) and Hon'ble Mr.
Justice Pamidighantam Sri Narasimha.
SUPREME COURT REPORTS
[2023] 16 S.C.R.
1210
Some of the prayers also related to the right of such couples to
adopt under existing laws in India. The issue was whether Regulations
5(2)(a) and 5(3) read with Schedules II, III and VI of the Adoption
Regulations framed by the Central Adoption Resource Authority
(CARA) are unconstitutional and ultra vires the Juvenile Justice (Care
and Protection of Children) Act, 2015 insofar as they exclude LGBTQ
couples from joint adoption.
Also, extensive submissions were advanced on the various forms of
violence and discrimination that society and the state machinery infl ict upon
the queer community, and especially queer couples; and directions were
sought to obviate such violence and discrimination.
Marriage - Conception and signifi cance of - Right to marriage -
Status of - If a fundamental right - Conferring legal status for union
or relationship - Prerogative of legislature or court:
Held [per S. Ravindra Bhat, J. (for himself and Hima Kohli, J.)]:
Marriage as an institution is prior to the State, i.e., it precedes it - The status
is still, not one that is conferred by the State (unlike the license regime in
the US) - The marriage structure exists, regardless of the State, which the
latter can utilise or accommodate, but cannot be abolished as a concept -
Under this view, terms of marriage are set, to a large extent, independently
of the State - Its source is external to the State - That source defi nes the
boundaries of marriage - This implies that State power to regulate marriage
does not sit easy with the idea of marriage as a fundamental right - There is
no unqualifi ed right to marriage except that recognised by statute including
space left by custom - Civil marriage or recognition of any such relationship,
with such status, cannot exist in the absence of statute - An entitlement to
legal recognition of the right to union - akin to marriage or civil union, or
conferring legal status upon the parties to the relationship can be only through
enacted law - A sequitur of this is that the court cannot enjoin or direct the
creation of such regulatory framework resulting in legal status. [Paras 45,
47 and 149] - Held (per Pamidighantam Sri Narasimha, J.) (Concurring
with S. Ravindra Bhat, J.): Marriage is a social institution, and in our
country, it is conditioned by culture, religion, customs and usages - The
institutional space of marriage is conditioned and occupied synchronously by
legislative interventions, customary practises, and religious beliefs - Given
the nature of marriage as an institution, the right to choose a spouse and
the right of a consenting couple to be recognized within the institution of
1211
marriage, cannot but be said to be restricted - There is no unqualifi ed right
to marriage guaranteed by the Constitution, that qualifi es it as a fundamental
freedom - Right to a civil union or an abiding cohabitational relationship
conferring a legally enforceable status cannot be situated within Part III of
the Constitution of India - The right to marriage is a statutory right, and
to the extent it is demonstrable, a right fl owing from a legally enforceable
customary practice - In the exercise of such a right, statutory or customary,
the State is bound to extend the protection of law to individuals, so that they
can exercise their choices without fear and coercion - The claim of the right
to marry, de-hors the existing statutory framework, is nothing but a claim to
create a legally and socially enforceable status - Marriage laws do not stand
in isolation, they interact in multifarious ways with succession, inheritance
and adoption laws, to name a few - Creation of social institutions and
consequent re-ordering of societal relationships are 'polycentric decisions',
which have "multiplicity of variable and interlocking factors, decisions on
each one of which presupposes a decision on all others", decisions that
cannot be rendered by one stroke of the judicial gavel. [Paras 4, 5, 12, 14]
- Held (per Dr. Dhananjaya Y. Chandrachud, CJI): There is no universal
conception of the institution of marriage, nor is it static - Marriage has
attained signifi cance as a legal institution largely because of regulation by
the State - By recognizing a relationship in the form of marriage, the State
grants material benefi ts exclusive to marriage - The State has an interest in
regulating the 'intimate zone' to democratize personal relationships - The
Constitution does not expressly recognize a fundamental right to marry - An
institution cannot be elevated to the realm of a fundamental right based on
the content accorded to it by law - However, several facets of the marital
relationship are refl ections of constitutional values including the right to
human dignity and the right to life and personal liberty [Para 340] - Held
(per Sanjay Kishan Kaul, J.): Marriage as an institution developed
historically and served various social functions - It was only later in its long
history that it came to be legally recognized and codifi ed - However, these
laws regulated only one type of socio-historical union, i.e., the heterosexual
union. [Para 8]
LGBTQ community / Queer persons - Is queerness 'un-Indian' -
Is it urban or elite - Historical prevalence of non-heterosexual unions:
Held (per Dr. Dhananjaya Y. Chandrachud, CJI): Queerness is a
natural phenomenon known to India since ancient times - It is not urban
or elite.[Para 340] - Held (per S. Ravindra Bhat, J.) (for himself and
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[2023] 16 S.C.R.
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Hima Kohli, J.) (Concurring): Queerness is a natural phenomenon that
is neither urban or elite [Para 2] - Held (per Sanjay Kishan Kaul, J.)
(also concurring): Non-heterosexual unions were well-known to ancient
Indian civilisation as attested by various texts, practices, and depictions of
art - Same-sex unions were recognised in antiquity, not simply as unions
that facilitate sexual activity, but as relationships that foster love, emotional
support, and mutual care - It would be misconceived to claim that nonheterosexual unions are only a facet of the modern social milieu - There
was existence of non-heterosexual unions, despite continued eff orts towards
their erasure by the heteronormative majority. [Paras 5, 6, 9]
LGBTQ community / Queer persons - Rights of - Right to union
or relationship - Discriminatory impacts on queer couples - Restrictions
- Discrimination on the basis of sexual orientation - Issue whether legal
recognition in the form of marriage can be given to non-heterosexual
relationships - Judicial review and separation of powers - Court, if
vested with the authority to decide the issue -Words and Phrases - "Sex"
and "Sexual orientation" - Constitution of India - Arts. 15, 21 and 245
and 246 r/w Entry 5 of List III to Seventh Schedule:
Held [per S. Ravindra Bhat, J. (for himself and Hima Kohli,
J.)]: The court may feel the wisdom of a measure or norm that is lacking;
nevertheless, its role is not to venture into functions which the Constitution
has authorised other departments and organs to discharge - It is one thing
for this Court, to commend to the State, to eliminate the discriminatory
impact of the intersections with laws and publicly administered policies and
institutions, upon non-heterosexual couples, and entirely another, to indirectly
hold that through a confl ation of positive obligations cast on the State, that
such individuals' right to choice to cohabit and form abiding relationships,
extends to the right (or some entitlement) to a legally recognised union
that must be actualized by State policy/legislation - Queer persons are not
precluded from celebrating their commitment to each other, or relationship,
in whichever way they wish, within the social realm - Queer and LGBTQ+
couples too have the right to union or relationship (under Article 21) - "be
it mental, emotional or sexual" fl owing from the right to privacy, right to
choice, and autonomy - This, however, does not extend to a right to claim
entitlement to any legal status for the said union or relationship - There are
almost intractable diffi culties in creating, through judicial diktat, a civil right
to marry or a civil union, no less, of the kind that is sought by the petitioners
(members of LGBTQIA+ community) - "Ordering a social institution" or
1213
re-arranging existing social structures, by creating an entirely new kind of
parallel framework for non-heterosexual couples, would require conception
of an entirely diff erent code, and a new universe of rights and obligations -
However, equality and non-discrimination are basic foundational rights - The
indirect discriminatory impacts in relation to earned or compensatory benefi ts,
or social welfare entitlements for which marital status is a relevant eligibility
factor, for queer couples who in their exercise of choice form relationships,
have to be suitably redressed and removed by the State - These measures need
to be taken with expedition - This court cannot within the judicial framework
engage in this complex task; the State has to study the impact of these policies,
and entitlements - Union shall set up a high-powered committee chaired by
the Union Cabinet Secretary, to undertake a comprehensive examination of all
relevant factors - In the conduct of such exercise, the concerned representatives
of all stakeholders, and views of all States and Union Territories shall be taken
into account [Paras 69, 136, 139 and 149] - Held (per Pamidighantam Sri
Narasimha, J.) (Concurring): The rights of LGBTQ+ persons, hitherto
recognized by the Court, are the right to gender identity, sexual orientation, the
right to choose a partner, cohabit and enjoy physical & mental intimacy - In
the exercise of these rights, they have full freedom from physical threat and
from coercive action, and the State is bound to aff ord them full protection of
the law in case these rights are in peril - The question of marriage equality
of same sex/LGBTQ+ couples did not arise for consideration in any of the
previous decisions of this Court, including the decision in Navtej Singh
Johar and NALSA - Consequently, there cannot be a binding precedent on
this count - It would not be constitutionally permissible to identify a right
to a union or an abiding cohabitational relationship mirroring the institution
of marriage - In positively mandating the State to grant recognition or legal
status to 'unions' from which benefi ts will fl ow, the doctrine of separation of
powers will be violated. [Paras 4, 16, 17] - Held (per Dr. Dhananjaya Y.
Chandrachud, CJI) (Dissenting): This Court is vested with the authority to
hear this case - The freedom of all persons including queer couples to enter
into a union is protected by Part III of the Constitution - Under Article 32,
the Supreme Court has the power to issue directions, orders, or writs for the
enforcement of the rights in Part III of the Constitution -Under Articles 245 and
246 of the Constitution read with Entry 5 of List III to the Seventh Schedule,
it lies within the domain of Parliament and the State legislatures to enact
laws recognizing and regulating queer marriage - The failure of the State to
recognise the bouquet of entitlements which fl ow from a union would result in
a disparate impact on queer couples who cannot marry under the current legal
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[2023] 16 S.C.R.
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regime - The State has an obligation to recognize such unions and grant them
benefi t under law - In Art.15(1), the word 'sex' must be read to include 'sexual
orientation' not only because of the causal relationship between homophobia
and sexism but also because the word 'sex' is used as a marker of identity which
cannot be read independent of the social and historical context - The right to
enter into a union cannot be restricted based on sexual orientation - Such a
restriction will be violative of Art.15 - Thus, this freedom is available to all
persons regardless of gender identity or sexual orientation - The decisions in
Navtej and Justice KS Puttaswamy (9J) recognize the right of queer couples
to exercise the choice to enter into a union - This relationship is protected
from external threat - Discrimination on the basis of sexual orientation will
violate Art.15 - The right to enter into a union is also grounded in Article
19(1)(e) - Union Government, State Governments, and Governments of
Union Territories not to discriminate against the freedom of queer persons
to enter into union with benefi ts under law - Assurance of the Solicitor
General that the Union Government will constitute a Committee chaired by
the Cabinet Secretary for the purpose of defi ning and elucidating the scope of
the entitlements of queer couples who are in unions - The Committee shall
inter alia consider the following: (i) enabling partners in a queer relationship
(a) to be treated as a part of the same family for the purposes of a ration card;
and (b) to have the facility of a joint bank account with the option to name
the partner as a nominee, in case of death; and (ii) legal consequences such as
succession rights, maintenance, fi nancial benefi ts such as under the Income
Tax Act 1961, rights fl owing from employment such as gratuity and family
pension and insurance - The report of the Committee be implemented at the
administrative level by the Union Government and the governments of the
States and Union Territories. [Paras 226, 340] - Held (per Sanjay Kishan
Kaul, J.) (Dissenting): Non-heterosexual unions are entitled to protection
under our Constitutional schema - Non-heterosexual unions and heterosexual
unions/marriages ought to be considered as two sides of the same coin, both
in terms of recognition and consequential benefi ts - This moment presents an
opportunity of reckoning with this historical injustice and casts a collective
duty upon all constitutional institutions to take affi rmative steps to remedy
the discrimination - Legal recognition of non-heterosexual unions represents
a step forward towards marriage equality - At the same time, marriage is
not an end in itself - Our Constitution contemplates a holistic understanding
of equality, which applies to all spheres of life - The practice of equality
necessitates acceptance and protection of individual choices - The capacity of
non-heterosexual couples for love, commitment and responsibility is no less
1215
worthy of regard than heterosexual couples - Let this autonomy be preserved,
so long as it does not infringe on the rights of others. [Paras 10, 19, 33]
LGBTQ / Queer persons - Transgenders and Intersex persons -
Entitlement to marriage - Transgender persons in heterosexual persons
can marry under existing law - Transgender Persons (Protection of
Rights) Act, 2019 - s.3 - Constitution of India - Art.15:
Held (per Dr. Dhananjaya Y. Chandrachud, CJI): The gender of a
person is not the same as their sexuality - A person is a transgender person
by virtue of their gender identity - A transgender person may be heterosexual
or homosexual or of any other sexuality - If a transgender person is in a
heterosexual relationship and wishes to marry their partner (and if each of them
meets the other requirements set out in the applicable law), such a marriage
would be recognized by the laws governing marriage -This is because one
party would be the bride or the wife in the marriage and the other party would
be the bridegroom or the husband - The laws governing marriage are framed
in the context of a heterosexual relationship - Since a transgender person can
be in a heterosexual relationship like a cis-male or cis-female, a union between
a transwoman and a transman, or a transwoman and a cisman, or a transman
and a ciswoman can be registered under Marriage laws - The transgender
community consists of inter alia transgender men and transgender women -
A transgender man has the right to marry a cisgender woman under the laws
governing marriage in the country, including personal laws - Similarly, a
transgender woman has the right to marry a cisgender man - A transgender
man and a transgender woman can also marry - Intersex persons who identify
as a man or a woman and seek to enter into a heterosexual marriage would
also have a right to marry - Any other interpretation of the laws governing
marriage would be contrary to s.3 of the Transgender Persons Act and Article
15 of the Constitution - Transgender persons in heterosexual relationships have
the right to marry under existing law including personal laws which regulate
marriage - Intersex persons who identify as either male or female have the
right to marry under existing law including personal laws which regulate
marriage. [Paras 277, 340] - Held [per S. Ravindra Bhat, J. (for himself
and Hima Kohli, J.)] (Concurring): Transgender persons in heterosexual
relationships have the freedom and entitlement to marry under the existing
statutory provisions. [Para 149].
LGBTQ community / Queer persons - Right of queer persons to
adopt children - By s.57(2) of the JJ Act, consent of both the spouses
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[2023] 16 S.C.R.
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for adoption is necessary ("shall be required") - In furtherance of
s.57(5) which delegates power to prescribe any other criteria, the
Central Adoption Resource Authority (CARA) notifi ed regulations with
Regulation 5(3) in express terms excluding unmarried couples from
adopting by prescribing the condition that the couple must have been
in two years of a 'stable marital relationship' - Whether the regulations
relating to adoption were ultra vires the parent enactment - the JJ Act,
and arbitrary for classifying couples on the basis of marital status, for
the purpose of joint adoption - Juvenile Justice (Care and Protection
of Children) Act, 2015 - Constitution of India - Art. 15 - Adoption:
Held [per S. Ravindra Bhat, J. (for himself and Hima Kohli, J.)]
(with Pamidighantam Sri Narasimha, J. concurring) (Majority opinion):
This is not a case of delegated legislation being ultra vires the parent Act
- The legislative choice, of limiting joint adoption only to married couples
needs to be understood in the broader context of the JJ Act, and its purpose
- which is the best interest of the child are paramount - The parent Act, and
delegated legislation, both are clear that a prospective adoptive parent can be
a single person (whether unmarried, widower, etc.) and on them, there exists
no restriction other than on a single male being barred from adopting a girl
child - The restriction of 'consent' of partner, applies only in the case of a
couple -This is because the child will enter into a family unit - consisting
of two parents, as a result of the adoption and will in reality, enjoy the
home that is made of both partners - Acceptance, therefore, of the other
partner, is imperative; it would not be in the best interest of the child if one
of the partners was unwilling to take on the responsibility - Also, it is not
a case for reading down or other interpretive construction - All marriages
may not provide a stable home, and a couple tied together in marriage are
not a 'morally superior choice', or per se make better parents - However,
the fact that Parliament has made the legislative choice of including only
'married' couples for joint adoption (i.e., where two parents are legally
responsible), arises from the reality of all other laws wherein protections
and entitlements, fl ow from the institution of marriage - To read down
'marital' status as proposed, may have deleterious impacts - Reading down
of the provision as sought for would result in the anomalous outcome that
heterosexual couples who live together, but choose not to marry, may adopt
a child together and would now be indirect benefi ciaries, without the legal
protection that other statutes off er - making it unworkable - Regulation 5(3)
of the CARA Regulations cannot be held void on the grounds urged - At the
1217
same time, CARA and the Central Government should appropriately consider
the realities of de facto families, where single individuals are permitted to
adopt and thereafter start living in a non-matrimonial relationship - In an
unforeseen eventuality, the adopted child in question, could face exclusion
from the benefi ts otherwise available to adopted children of married couples
- This aspect needs further consideration, for which the court is not the
appropriate forum - No matter how much one empathizes with the outcome
sought, the means to arriving at such a destination, must also be legally
sound, and keep intact, the grand architecture of our Constitutional scheme
- It is not that unmarried couples - whether queer or heterosexual- are not
capable or suitable, to be adoptive parents - Given the objective of s.57
and other allied provisions of the JJ Act, which is benefi cial for children,
the State as parens patriae needs to explore every possibility and not rule
out any policy or legislative choice to ensure that the maximum welfare
and benefi ts reach the largest number of children in need of safe and secure
homes. [Paras 123, 124, 125, 127, 128, 130, 133, 149, 166] - Held (per
Dr. Dhananjaya Y. Chandrachud, CJI) (Dissenting): Unmarried couples
(including queer couples) can jointly adopt a child - Regulation 5(3), though
facially neutral, indirectly discriminates against atypical unions (such as
the relationship between non-heterosexual partners) which have not been
recognised by the State - Regulation 5(3) is ultra vires the JJ Act, Articles
14, and 15 - Regulation 5(3) is read down to exclude the word "marital"
- The reference to a 'couple' in Regulation 5 includes both married and
unmarried couples as well as queer couples - The principle in Regulation
5(2)(a) that the consent of spouses in a marriage must be obtained if they
wish to adopt a child together is equally applicable to unmarried couples
who seek to jointly adopt a child - However, while framing regulations,
the State may impose conditions which will subserve the best interest and
welfare of the child. [Para 340].
Special Marriage Act, 1954 (SMA) - Challenge to SMA and allied
laws, on the ground of under classifi cation - Not tenable - Prayer for
reading of their provisions in a 'gender neutral' manner so as to enable
same-sex marriage - Not sustainable - Judicial Review -Scope:
Held (per Dr. Dhananjaya Y. Chandrachud, CJI): The SMA was
enacted to enable persons of diff erent religions and castes to marry - If
the SMA is held void for excluding same-sex couples, it would take India
back to the pre-independence era where two persons of diff erent religions
and caste were unable to celebrate love in the form of marriage - Such a
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SUPREME COURT REPORTS
[2023] 16 S.C.R.
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judicial verdict would not only have the eff ect of taking the nation back to
the era when it was clothed in social inequality and religious intolerance
but would also push the courts to choose between eradicating one form of
discrimination and prejudice at the cost of permitting another - If this Court
reads words into the provisions of the SMA and provisions of other allied
laws, it would in eff ect be entering into the realm of the legislature - This
Court cannot either strike down the constitutional validity of SMA or read
words into the SMA because of its institutional limitations - This Court
cannot read words into the provisions of the SMA and provisions of other
allied laws because that would amount to judicial legislation - The Court
in the exercise of the power of judicial review must steer clear of matters,
particularly those impinging on policy, which fall in the legislative domain -
Whether a change should be brought into the legislative regime of the SMA
is for Parliament to determine. [Paras 204, 207, 208 and 340] - Held [per S.
Ravindra Bhat, J. (for himself and Hima Kohli, J.)] (Concurring) : The
challenge to the SMA on the ground of under classifi cation is not made out -
Further, the petitioner's prayer to read various provisions in a 'gender neutral'
manner so as to enable same-sex marriage, is unsustainable - Exclusion or
under inclusion, per se, cannot be characterised as discriminatory, unless
the excluded category of persons, things or matters, which are the subject
matter of the law (or policy) belong to the same class (the included class) -
If one looks at the enacted provisions, especially Sections 19-21 and 21A,
Sections 24, 25, 27, 31, 37 and 38, of SMA, there can be no doubt that
the sole intention was to enable marriage (as it was understood then, i.e.,
for heterosexual couples) of persons professing or belonging to diff erent
faiths, an option hitherto available, subject to various limitations - There
was no idea to exclude non-heterosexual couples, because at that time, even
consensual physical intimacy of such persons, was outlawed by Section 377
IPC - So, while the Act sought to provide an avenue for those marriages
that did not enjoy support in society, or did not have the benefi t of custom
to solemnise, it would be quite a stretch to say that this included same
sex marriages - Therefore, the challenge to the constitutionality of the
statute, must fail - As long as an objective is clearly discernible, it cannot
be attacked merely because it does not make a better classifi cation - The
original rationale for SMA was to facilitate inter-faith marriages - That
reason is as valid today as it was at the time of birthing that law - It cannot
be condemned on the ground of irrelevance, due to passage of time - The
provisions of SMA are incapable of being "reading down", or interpreted
by "reading up" in the manner suggested by the petitioners - The general
1219
pattern of provisions - including the specifi c provisions, enabling or entitling
women, certain benefi ts and the eff ect of Sections 19, 20, 21 and 21A of
SMA is that even if for arguments' sake, it were accepted that Section
4 of SMA could be read in gender neutral terms, the interplay of other
provisions- which could apply to such non-heterosexual couples in such
cases, would lead to anomalous results, rendering the SMA unworkable -
Gender neutral interpretation of existing laws would complicate an already
exhausting path to justice for women and leave room for the perpetrator to
victimise them - A law which was consciously created and fought for, by
women cannot, by an interpretive sleight be diluted. [Paras 79, 82, 85, 87,
101, 102, 149] - Held (per Pamidighantam Sri Narasimha, J.) (Also
concurring): The constitutional challenge to the Special Marriage Act, 1954
and the Foreign Marriage Act, 1969 must fail - Semantic impossibilities
of gender-neutral constructions of the Special Marriage Act, 1954 and the
Foreign Marriage Act, 1969. [Para 4] - Held (per Sanjay Kishan Kaul,
J.): If the intent of the SMA is to facilitate inter-faith marriages, then there
would be no rational nexus with the classifi cation it makes, i.e., excluding
non-heterosexual relationships - An objective to exclude non-heterosexual
relationships would be unconstitutional, especially after this Court in Navtej
has elaborately proscribed discrimination on the basis of sexual orientation -
Therefore, the SMA is violative of Article 14 of the Constitution - However,
there are multifarious interpretive diffi culties in reading down the SMA to
include marriages between non-heterosexual relationships - Entitlements
devolving from marriage are spread out across a proverbial 'spider's web'
of legislations and regulations - Tinkering with the scope of marriage under
the SMA can have a cascading eff ect across these disparate laws. [Para 17]
LGBTQ community / Queer persons - Discrimination and violence
against - Directions sought to obviate the same:
Held [per S. Ravindra Bhat, J. (for himself and Hima Kohli, J.)]:
The State shall ensure - consistent with the previous judgments in K.S.
Puttaswamy, Navtej Johar, Shakti Vahini and Shafi n Jahan- that the choice
exercised by queer and LGBTQ couples to cohabit is not interfered with
and they do no face any threat of violence or coercion - Respondents shall
take suitable steps to ensure that queer couples and transgender persons
are not subjected to any involuntary medical or surgical treatment - Above
directions in relation to transgender persons to be read as part of and not in
any manner whittling down the directions in NALSA so far as they apply to
transgender persons - This court is alive to the feelings of being left out,
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v.
UNION OF INDIA
SUPREME COURT REPORTS
[2023] 16 S.C.R.
1220
experienced by the queer community;however, addressing their concerns
would require a comprehensive study of its implications involving a
multidisciplinary approach and polycentric resolution, for which the court
is not an appropriate forum to provide suitable remedies. [Para 149] - Held
(per Pamidighantam Sri Narasimha, J.): One is not oblivious to the
concerns of the LGBTQ+ partners with respect to denial of access to certain
benefi ts and privileges that are otherwise available only to married couples
- The general statutory scheme for the fl ow of benefi ts gratuitous or earned;
property or compensation; leave or compassionate appointment, proceed on a
certain defi nitional understanding of partner, dependant, caregiver, and family
- In that defi nitional understanding, it is no doubt true, that certain classes
of individuals, same-sex partners, live-in relationships and non-intimate care
givers including siblings are left out - The impact of some of these defi nitions
is iniquitous and in some cases discriminatory - The policy considerations and
legislative frameworks underlying these defi nitional contexts are too diverse
to be captured and evaluated within a singular judicial proceeding - A review
of the impact of legislative framework on the fl ow of such benefi ts requires
a deliberative and consultative exercise, which exercise the legislature and
executive are constitutionally suited, and tasked, to undertake.[Para 19] -
Held (per Dr. Dhananjaya Y. Chandrachud, CJI): The State must enable
the LGBTQ community to exercise its rights under the Constitution - Queer
persons have the right to freedom from coercion from their natal families,
agencies of the State including the police, and other persons - Union
Government, State Governments, and Governments of Union Territories,
inter alia, were directed (i) that the queer community is not discriminated
against; (ii) that there is no discrimination in access to goods and services
to the queer community, which are available to the public; (iii) to sensitise
the public about queer identity; (iv) to establish hotline numbers for the
queer community; (v) to establish and publicise 'safe houses' for queer
community; (vi) to ensure that inter-sex children are not forced to undergo
operations with regard only to their sex; (vii) that no person shall be forced
to undergo hormonal therapy or sterilisation or any other medical procedure
either as a condition or prerequisite to grant legal recognition to their gender
identity - Further, directions to appropriate Government under the Mental
Healthcare Act to formulate modules covering the mental health of queer
persons in their programmes under Section 29(1) and that programmes to
reduce suicides and attempted suicides [envisaged by Section 29(2)] must
include provisions which tackle queer identity - Also, directions issued
1221
to the police machinery such as (i) there shall be no harassment of queer
couples by summoning them to the police station or visiting their places of
residence solely to interrogate them about their gender identity or sexual
orientation; (ii) not to force queer persons to return to their natal families and
(iii) before registering an FIR against a queer couple or one of the parties in
a queer relationship (where the FIR is sought to be registered in relation to
their relationship), they shall conduct a preliminary investigation. [Paras 339,
340] - Held (per Sanjay Kishan Kaul, J.): There is a need for a separate
anti-discrimination law which inter alia prohibits discrimination on the basis
of sexual orientation - Such a law should recognize discrimination in an
intersectional manner i.e. discrimination must be looked at as a confl uence of
factors - as identities and individual instances of oppression that 'intersect'
and create a distinct form of disadvantage. [Paras 27, 28].
LIST OF CITATIONS AND OTHER REFERENCES
In the judgment of S. Ravindra Bhatt, J.
Delhi Transport Corporation v. DTC Mazdoor Congress [1990] Supp.
1 SCR 142; Cellular Operators Association of India v. Telecom Regulatory
Authority of India [2016] 9 SCR 1; Kharak Singh v. State of UP, [1964] 1
SCR 332; Bijoe Emmanuel v. State of Kerala [1986] 3 SCR 518; Union of
India (UOI) v. Naveen Jindal & Ors. [2004] 1 SCR 1038; State of Gujarat
and Another v. Shri Ambica Mills Ltd [1974] 3 SCR 760; Venugopala Ravi
Varma Rajah v. Union of India [1969] 3 SCR 827; Ajoy Kumar Banerjee &
Ors. v. Union of India & Ors. [1984] 3 SCR 252 - relied on.
All India Bank Employees Association v. National Industrial Tribunal
[1962] 3 SCR 269; Maneka Gandhi v. Union of India (UOI) & Ors. [1978]
2 SCR 621; In Re the Special Courts Bill, 1978 [1979] 2 SCR 476; Central
Bank of India v. Ravindra [2001] Supp 4 SCR 323 - followed.
Vishaka & Ors v. State of Rajasthan [1997] Supp 3 SCR 404; Common
Cause (A Regd. Society) v. Union of India (UOI) & Ors. [2018] 6 SCR 1;
National Legal Services Authority v. Union of India & Ors. [2014] 5 SCR
119; Motor and General Traders v. State of AP [1984] 1 SCR 594; Rattan
Arya v. State of T.N. [1986] 2 SCR 596; Satyawati Sharma v. Union of India
2008 (6) SCR 566; Dharani Sugars and Chemicals Ltd v. Union of India
[2019] 6 SCR 307; X v. Principal Secretary, Health and Family Welfare
Department [2022] 7 SCR 686 - distinguished.
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v.
UNION OF INDIA
SUPREME COURT REPORTS
[2023] 16 S.C.R.
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Navtej Johar & Ors. v. Union of India [2018] 7 SCR 379; K.S.
Puttaswamy v. Union of India [2017] 10 SCR 569; Shafi n Jahan v. Asokan
K.M & Ors. [2018] 4 SCR 955;Shakti Vahini v. Union of India [2018] 3
SCR 770; Deepika Singh v. Central Administrative Tribunal [2022] 7 SCR
557 - explained.
Mohd. Ahmad Khan v. Shah Bano Begum [1985] 3 SCR 844; Danial
Latifi v. Union of India [2001] Suppl. 3 SCR 419; Revanasiddappa v.
Mallikarjuna 2023 INSC 783: 2023 SCC OnLine SC 1087; Independent
Thought v. Union of India & Anr. [2017] 13 SCR 821; Shayara Bano v.
Union of India & Anr. [2017] 9 SCR 797; Laxmi Kant Pandey v. UOI [1985]
Supp. 3 SCR 71; Suchita Srivastava & Ors. v. Chandigarh Administration
[2009] 13 SCR 989; Devika Biswas v. Union of India [2016] 5 SCR 773;
Asha Ranjan v. State of Bihar [2017] 1 SCR 945; In re [Gang-Rape Ordered
by Village Kangaroo Court in W.B., (2014) 4 SCC 786: 2014] 4 SCR 264;
Indian Young Lawyers Association & Ors. v. the State of Kerala & Ors.
[2018] 9 SCR 561; Francis Coralie Mullin v. Administrator, Union Territory
of Delhi [1981] 2 SCR 516; Prem Shankar Shukla v. Delhi Admn [1980] 3
SCR 855; Jeeja Ghosh v. Union of India, [2016] 4 SCR 638; Anuj Garg v.
Hotel Association of India [2007] 12 SCR 991; Kesavananda Bharati v. State
of Kerala [1973] Supp SCR 1; State Of Gujarat and Another v. Shri Ambica
Mills Ltd [1974] 3 SCR 760; M. Nagaraj v. Union of India [2006] Supp 7
SCR 336; Rajive Raturi v. Union of India & Ors [2017] 12 SCR 827; Suresh
Kumar Koushal v. Naz Foundation (2014) 1 SCC 1: [2013] 17 SCR 1019;
Lata Singh v. State of U.P. [2006] 3 Suppl. SCR 350; Laxmibai Chandaragi
v. State of Karnataka 2021 (3) SCC 360: [2021] 1 SCR 518; Joseph Shine
v. Union of India [2018] 11 SCR 765; Sivasankaran v. Santhimeenal [2021]
6 SCR 169; Indra Sarma v. V.K.V. Sarma [2013] 14 SCR 1019; Andhra
Pradesh Public Service Commission v. Baloji Badhvanath,[2009] 5 SCR
668; State of Kerela v. N.M. Thomas, (1976) 2 SCC 310: [1976] 1 SCR
906; Indra Sawhney v. Union of India, (1992) Supp (3) SCC 217: [1992] 2
Suppl. SCR 454; Arumugam Servai v. State of Tamil Nadu [2011] 5 SCR
488; Rustom Cavasjee Cooper v. Union of India [1970] 3 SCR 530; Sakal
Papers (P) Ltd v. Union of India [1962] 3 SCR 842; Bennet Coleman v.
Union of India [1973] 2 SCR 757; Express Newspapers (P) Ltd. v. Union
of India, [1959] 1 SCR 12; Ratilal Panachand Gandhi v. State of Bombay
[1954] 1 SCR 1055; D.S. Nakara v. Union of India [1983] 2 SCR 165; Kedar
Nath Bajoria v. State of West Bengal [1954] 1 SCR 30; Chandan Banerjee
1223
v. Krishna Prasad Ghosh [2021] 11 SCR 720; Transport & Dock Workers
Union v. Mumbai Port Trust [2010] 14 SCR 873; Union of India v. M.V.
Valliappan [1999] 3 SCR 1146; State of J&K v. Triloki Nath Khosa [1974]
1 SCR 771; Dharani Sugars and Chemicals Ltd v. Union of India, [2019]
6 SCR 307; Badshah v. Sou. Urmila Badshah Godse [2013] 10 SCR 259;
All Kerala Online Lottery Dealers Association v. State of Kerala & Ors.,
[2015] 10 SCR 880; State (Through CBI/New Delhi) v. S.J. Choudhary
(1996) 2 SCC 428: [1996] 2 SCR 556; Githa Hariharan v. Union of India
[1999] 1 SCR 669; SIL Import, USA v. Exim Aides Silk Exporter [1999] 2
SCR 958; BR Enterprises v. State of U.P. [1999] 2 SCR 1111; Association
of Old Settlers of Sikkim & Ors. v. Union of India [2023] 10 SCR 289;
S.R. Chaudhuri v. State of Punjab & Ors (2001) 7 SCC 126: [2001] 1
Suppl. SCR 621; Shailesh Dhairyawan v. Mohan Balkrishna Lulla [2015]
12 SCR 70; Ebix Singapore Private Limited and Ors. v. Committee of
Creditors of Educomp Solutions Ltd & Ors. [2021] 14 SCR 321; Workmen
of Dimakuchi Estate v.