SUPRIYO @ SUPRIYA CHAKRABORTY VS UNION OF INDIA : RIGHT TO MARRY NOT A FUNDAMENTAL RIGHT
The Supreme Court in Supriyo Vs Supriyo Chakraborty Vs Union of India (Writ Petition (Civil) No. 1011 or 2022) held that right to marry is not a Fundamental Right recognized by Constitution of India.
FACTS OF THE CASE
Petitioners were members of LBGTQIA + (Queer) community. The petitioner claimed that they are aggrieved of the fact that State discriminates against the queer community by impliedly excluding them from institution of marriage. The Petitioners sought legal recognition of their relationship with partner in form of marriage.
It was contended by the Petitioners that Special Marriage Act and Foreign Marriage Act are violative of Article 14, 15, 19, 21 and 25 of the Constitution so far as they do not provide for the solemnization of marriage between same-sex, gender non-conforming or LGBTQ couples.
FINDINGS OF THE SUPREME COURT
The Supreme Court rejected the argument that it does not have power to decide the issue and such a decision can only be arrived at through a process that reflects electoral will. The Supreme Court rejected the argument and held that its power to do justice is not limited either by the manner in which Article 32 has been constructed or by any part of the Constitution. It is amply clear form both the plain meaning of Article 32 as well as the Constituent Assembly debates it has the power to issue directions, orders, or writs for the enforcement of the rights incorporated in Part III of the Constitution.
The Supreme Court observed that queerness is a natural phenomenon which is known to India from ancient times. Queerness is not urban or elite.
The Supreme Court observed that there is no universal concept of marriage. Marriage is understood differently in law, religion and culture. The concept of marriage is not static and gone through sea change over time. The institution of marriage is built and re-built by societies, communities, and individuals. The only facet of marriage which is constant across religion, community, caste and region is that the couple is a legally binding relationship – one which recognizes an emotional bond of togetherness, loyalty and commitment – that is recognized by the law.
No Fundamental Right to marry
The Supreme Court observed that the Constitution does not expressly recognize a Fundamental Right to marry. Yet it cannot be gainsaid that many of our constitutional value, including the right to life and liberty may comprehend the values which a marital relationship entails. They may at the very least entail respect for the choice of a person whether and when to enter upon marriage and the right of chose a marital partner.
Constitutionality of Special Marriage Act, 1954
The Supreme Court held that it cannot strike down constitutional validity of Special Marriage Act, 1954 or read down words due to constitutional limitations. It cannot read words into the provisions of the Special Marriage Act, 1854 and provisions of other allied laws because that would amount to judicial legislations. 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.
Rights of Queer Couples
The Supreme Court held that freedom of all persons including queer couples to enter into a union is protected by Part III of the Constitution. The failure of the State to recognize the bouquet of entitlements which flow from a union would result in a disparate impact on queer couples who cannot marry under the current legal regime. The state has an obligation to recognize such unions and grant them benefit under law.
The Supreme Court held that in Article 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 Supreme Court held that the right to enter into union cannot be restricted based on sexual orientation. Such a restriction will be violative of Article 15. This freedom is available to all persons regardless of gender identity or sexual orientation.
Validity of Regulation 5 (3) of Adoption Regulations, 2022
The Supreme court held that unmarried couples (including queer couples) can jointly adopt a child. Regulation 5 (3) of the Adoption Regulations is ultra vires the Juvenile Justice (Care and Protection ) Act, 2016 Article 14 and 15. Regulation 5 (3) is read down to exclude the word “marital”. The reference to a “couple” is Regulation 5 includes both married and unmarried couples as well as queer couples.
The Supreme Court also directed Union Government, State Government and UT to take steps to ensure that queer community is not discriminated. The Supreme Court also issued several directions to police authorities to protect queer persons from harassment. The Supreme Court also directed the Committee to be formed under chairmanship of Cabinet Secretary to define entitlements of queer couples.
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.