Supriyo @ Surpiya Chakraborty v. UoI
Writ Petition (Civil) No. 1011 of 2022
My Lord, LGBTQ persons have a right to marry a person of their choice regardless of religion, gender and sexual orientation?
No.
A thing, an occurrence, or a practice is ‘Indian’ when it is present in India, takes place here, or is practised by Indian citizens. Something which is ‘Indian’ could be present from time immemorial or it could be a recent development. Regardless, this is not a game of numbers. Sexual and gender minorities are ‘Indian’.
A universal conception of marriage is not present nor is a conception of marriage static over time. Neither Justice KS Puttaswamy nor Navtej hold, Constitution guarantees a right to marry. It now falls upon this Court to decide for the first time. Constitution does not expressly recognize a fundamental right to marry. [CJI Dr. D.Y. Chandrachud J]
However, a legal recognition of non-heterosexual ‘unions’ represents a step forward towards marriage equality. The capacity of non-heterosexual couples for love, commitment and responsibility is no less worthy of regard than heterosexual couples. Let us preserve this autonomy. After all, “it’s my life“. [Sanjay Kishan Kaul J]
The task of this Court lies in determining how the Constitution speaks. We do agree with Chief Justice’s conclusion: there exists no fundamental right to marry under the Constitution. Court cannot stray too far from express provisions and manner in which they are cast. LGBTQ persons too have a right to an ‘union’ or ‘relationship’ (Article 21), “be it mental, emotional or sexual”. This, however, does not extend to a right to claim entitlement to any legal status for said ‘union’ or ‘relationship’. [S. Ravindra Bhat and Hima Kohli JJ]
In my considered opinion, institutional space of a marriage is conditioned and occupied synchronously by legislative interventions, customary practises and religious beliefs. This is a product of our social and constitutional realities and, therefore, in my opinion, comparative judicial perspectives offer little assistance. As per Chief Justice, benefits of marriage, however fundamental to a fulfilling life, do not make marriage itself a fundamental right. But they render right to an ‘abiding cohabitational union’ fundamental? I find it difficult to reconcile. Chief Justice classifies status of two persons in a ‘relationship’: (a) ‘relationships’ which do not have legal consequences, (b) ‘unions’ which have legal consequences and marriages. In my considered opinion, Doctrine of Separation of Powers is violated in positively mandating State to grant recognition or legal status to ‘unions’, from which benefits will flow. In my opinion, direction in effect is to amend existing statutory frameworks, if not to legislate afresh. [Pamidighantam Sri Narasimha J]
