Case - Supriyo and Anr v. Union of India
Citation - W.P.(C) No. 1011/2022; Diary No. 36593/2022
The Supreme Court of India on April 18, 2023, began hearing a series of petitions seeking legal recognition of same-sex marriage in India under the Special Marriage Act[1]. The Special Marriage Act of 1954 provides a civil form of marriage for couples who cannot marry under their personal law. The main petitioners of the case, Supriyo and Abhay Dang, argue that the non-recognition of same-sex marriage amounts to discrimination that strikes at the root of dignity and self-fulfilment of LGBTQIA+ couples.
The petitions argued that marriage brings with it several rights, privileges, and obligations that are “bestowed and protected by the law”. The Delhi Commission for Protection of Child Rights (DCPCR) also advocated for the recognition of marriage, filing an intervention application to assist the court with the impact of such marriages on children.
On the other hand, the respondents, including the Central government, the national child rights body NCPCR, and a body of Islamic scholars called the Jamiat-Ulama-i-Hind, opposed the petitions. The Centre has maintained its stance against marriage equality, invoking that a marriage between a biological man and woman is a “holy union, a sacrament and a sanskar” in India. In its submission to the Supreme Court, the Centre has called this petition, a voicing of “urban elitist views”. According to the Centre, the judiciary should leave the task to the Parliament, the people would decide whether such a marriage is socially and religiously acceptable or not.
Here’s the chronology of how the case reached the Constitution Bench of the Supreme Court:
November 25, 2022: Two gay couples moved the Supreme Court, seeking recognition of same-sex marriage under the Special Marriage Act, following which the court issued notices on the plea that,
- The petitions sought that the Special Marriage Act be made gender-neutral by taking down any gender-or sexuality-based restriction.
- The court had noted that in a similar case before the Kerala High Court, the Union Government made a statement through the Deputy Solicitor General that the ministry was taking steps to get all the writ petitions, including the writ petition before the High Court of Delhi, transferred to the SC.
- The court also took note of petitions pending before various courts on the same subject, including one petition before the Kerala HC and eight others before the Delhi HC.
- A two-judge bench led by Chief Justice of India DY Chandrachud then issued a notice and sought a response from the Central government, and the Attorney General for India.
December 14, 2022: The Supreme Court issued a notice in another plea filed by a same-sex couple. The married couple, including one Indian national and one US citizen, sought legal recognition of their marriage under the Foreign Marriage Act, of 1969.
Transfer of cases from High Courts to Supreme Court:
January 6, 2023: The Supreme Court directed the transfer of all petitions seeking legal recognition for same-sex marriages pending before different high courts to the Apex Court.
A bench headed by CJI DY Chandrachud transferred all petitions pending on the issue before different high courts, including Delhi, Kerala, and Gujarat. The top court posted to March 13 the hearing of petitions seeking recognition of same-sex marriage under various Acts, including the Special Marriage Act, Foreign Marriage Act[2], and the Hindu Marriage Act[3]. The government was asked to file its response to the pleas by February 15.
The court said that multiple petitions are pending before different high courts involving similar issues and should be transferred to and decided by the Apex court. The court also granted liberty to petitioners to argue before the court virtually.
The court appointed nodal counsel on behalf of both sides to assist the court. The CJI suggested the Solicitor General and the petitioner counsels discuss and identify the issues to be argued. The CJI also said that 3-4 lead counsels can be decided by the petitioners to ensure there was no repetition. The court had earlier issued notice on some of the pleas and had sought the Centre’s response to two pleas filed by two gay couples, seeking the solemnisation of same-sex marriage under the Special Marriage Act, of 1954. The SC appointed Advocate Kanu Agarwal as the nodal counsel for the Union of India and Advocate Arundhati Katju for the petitioners, to assist the court.
January 30, February 10, February 20, & March 3, 2023: The Supreme Court issued notices on more petitions filed seeking similar relief and tagged them with the main case.
March 12, 2023: The Centre filed an affidavit before the SC opposing same-sex marriage, stating that the concept of an Indian family involves a biological man and woman and it won’t be possible for the court to change the entire legislative policy of the country that was deeply embedded in religious and societal norms.
According to the Centre, a union between persons of the opposite sex was socially, culturally, and legally ingrained into the very idea and concept of marriage and ought not to be disturbed or diluted by judicial interpretation. The codified and uncodified personal laws take care of all branches of every religion, and depending upon the personal laws applicable, the nature of marriage as an institution is different. The Centre’s affidavit stated that "amongst Hindus, it is a sacrament, a holy union for the performance of reciprocal duties between a man and a woman. In Muslims, it is a contract but again envisaged only between a biological man and a biological woman”.
March 13, 2023: The SC referred the case to a Constitution Bench, considering the broader context of the petitions and the inter-relationship between the statutory regime and constitutional rights.
The petitioners asserted broader constitutional entitlements arising out of the right to life and personal liberty and the right to dignity, which are embodied in the provisions of the Constitution, including its Preamble, and as a natural incident of Articles 14, 19, and 21.
The submissions involved the interplay between constitutional rights on the one hand and specific legislative enactments, including the Special Marriage Act 1954, the Foreign Marriage Act 1969, the Hindu Marriage Act 1955, the Citizenship Act[4], and the Transgender Persons Protection of Rights Act 2019[5].
The Supreme Court noted that one of the issues raised before the court relates to the rights of transgender couples to marry, as a natural incident of their constitutional entitlements. The top court found it appropriate for the issues raised to be resolved by a bench of five judges in view of the provisions of Article 145(3) of the Constitution.
April 1, 2023: The Jamiat Ulama-I- Hind (JUIH) opposed the pleas seeking legal recognition of same-sex marriages, claiming that Islam’s position on the prohibition of homosexuality is undisputed and established. The JUIH plea said, “Islam’s prohibition of homosexuality has been categorical from the dawn of the religion of Islam itself. The position of Islam with respect to the prohibition on homosexuality is undisputed and established.”
April 6: The Delhi Commission for Protection of Child Rights (DCPCR) filed an intervention application, supporting same-sex marriages and the right of same-sex couples to adopt.
The case came before the Constitution Bench:
April 15, 2023: The Supreme Court notified the composition of the five-judge bench that will hear the batch of petitions seeking legal recognition for same-sex marriage. The five-judge Constitution Bench comprises Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha.
April 17, 2023: The Centre filed a new application, this time questioning the maintainability of the batch of pleas. The application was mentioned by the Solicitor General and the CJI directed the same to be listed with the main case.
The Centre in its application said same-sex marriages cannot be recognised through judicial adjudication and it is in the exclusive domain of the legislature. The Centre stated that those seeking marriage equality in India merely represent "urban elitist views for the purpose of social acceptance", and that the popular will of the people is that marriage be recognised solely amongst heterosexual individuals.
The NCPCR also raised a plea stating that children raised by same-sex parents may have limited exposure to traditional gender role models, which could impact their understanding of gender roles and gender identity. The NCPCR further stated that exposure of these children would be limited and their overall personality development would be affected.
However, the Delhi Commission for Protection of Child Rights (DCPCR) has supported the case of the petitioners and said adoption and succession rights must be conferred on same-sex couples.
The Bar Council of India (BCI) also recently held a joint meeting with all the State Bar Councils in the country and passed a resolution requesting the Court to leave the same-sex marriage issue for legislative consideration. The BCI's statement was later condemned by the Supreme Court Bar Association (SCBA) stating that it is the duty of the apex court to hear the petition and decide whether it should be adjudicated by the Court or be left to the wisdom of the parliament.
After 7 days of hearing the SC on 27 April 2023, had asked the Centre to come back with its response on the social benefits that same-sex couples can be granted even without legal recognition of their marital status. The court posed the question after observing that the Centre's acceptance of the right to cohabitate with same-sex partners as a fundamental right cast a “corresponding duty" on it to recognise its social consequences.
On the 8th day of the hearing, 3 May 2023, the Centre proposed forming a multi-ministry Committee under Cabinet Secretary to address concerns of the LGBTQ+ community and suggestions given by the petitioners. Solicitor General Tusshar Mehta stated to the Supreme Court that the Committee would have representation from across ministries and it will be headed by the Cabinet Secretary. The next hearing will be held on 9 May 2023.
On the 9th day of the hearing, Appearing for the child rights body NCPCR, among others, ASG Aishwarya Bhati submitted that while the concept of gender may be “fluid”, the concepts of mother and motherhood are not. According to her “entire architecture of our laws is to protect the interest and the welfare of children who are naturally born to heterosexual persons, and the State is justified in treating heterosexuals and homosexuals differently,”
Meanwhile, the Centre informed the SC that it had received responses from seven states on the plea seeking legal recognition for same-sex marriages. While Rajasthan, Assam, and Andhra Pradesh opposed the plea, the remaining four — Sikkim, Maharashtra, Uttar Pradesh, and Manipur — sought more time.
Additionally, petitioners’ advocate Mukul Rohatgi suggested that without an interpretation of the Special Marriage Act in favour of LGBTQIA+ persons, the court could register marriages under the Registration Act, of 1908.
On the final day of arguments, the defendants’ Senior Advocate AM Singhvi told the Bench that a civil union, as permitted in some countries, is not a solution to what same-sex couples are asking for, as civil unions are not an equal alternative and do not address constitutional anomalies presented by excluding non-heterosexual couples from the institution of marriage. This exclusion sends a message that it is legitimate to differentiate between the commitments of heterosexual and non-heterosexual couples, by indicating that the latter’s marriages are not as significant as “real” marriages.
The Supreme Court on 11 May 2023 reserved its verdict on the batch of petitions seeking legal recognition of same-sex marriages after a hearing that lasted 10 days. The bench, however, did not indicate any tentative time frame for delivering its verdict as the Supreme Court will remain shut for the summer vacation till June 30, 2023, starting May 22, 2023. The judgment is expected only after this break.
This debate is being keenly watched in a country that is home to tens of millions of LGBTQ+ people. Over the years, acceptance of homosexuality has also grown in India, especially since the September 2018 ground-breaking ruling that legalised consenting same-sex relationships. But attitudes to sex and sexuality remain largely conservative and activists say most LGBTQ+ people are afraid to come out, even to their friends and family, and attacks on same-sex couples routinely make headlines.
[1] https://indiankanoon.org/doc/4234/
[2] https://ncwapps.nic.in/acts/TheForeignMarriageAct1969.pdf
[3] https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf
[4] https://www.indiacode.nic.in/bitstream/123456789/4210/1/Citizenship_Act_1955.pdf
[5] https://www.indiacode.nic.in/bitstream/123456789/13091/1/a2019-40.pdf
