08, Nov 2023 | CJP Team
The five-judge constitutional bench of the Supreme Court had delivered its judgement on October 17, 2023, in the case of Supriyo Chakraborty vs. Union of India, stating unanimously that non-heterosexual marriages cannot be read within the provisions of Special Marriage Act, 1954 (SMA) and that there is no fundamental right to marry. It also stated that the transgender persons have the right to marry under the Special Marriages Act (SMA). The majority opinion by Justices Ravindra Bhat, Hima Kohli and P.S. Narasimha differed with the minority opinion of Chief Justice of India (CJI) D.Y. Chandrachud and Justice S.K. Kaul, on the issue of validity of adoption regulations that restricted unmarried couples to adopt children.
This article is a part of a series that will explain and analyse the judgement with respect to different ways in which the judges reached their conclusions, the jurisprudence they created and sidelined, and the consequences of this judgement. The following were the issues decided by the court:
1) Whether the Right to Marry is a Fundamental Right or not.
2) Whether there is a Fundamental right to enter a Civil Union or not.
3) Whether the SMA is unconstitutional for excluding non-heterosexual persons from its scope or not.
4) Whether non-heterosexual marriage can be read within the framework of SMA or not.
5) Whether Transgender Persons have a right to marry under the SMA or not.
6) Whether the adoption Regulations that restrict unmarried non-heterosexual couples in adopting children are valid or not.
The relevant provisions for each issue of the respective act/regulations will be discussed in the respective part for the sake of ease. For now, this part will examine the issue of whether Right to Marry is a Fundamental Right or not, according to the judgement.
This was an issue on which the five judges were unanimous in their decision — that there is no fundamental right to marry.
In a three- judge bench judgement by the Supreme Court in the case of Shafin Jahan vs. Asokan K.M, it was held that individual has a right to marry a person of one’s own choice as well as the right to choose a religion. In another 3-Judge bench judgement by the Supreme Court in the case of Shakti Vahini vs. Union of India, the judgement observed that the ability of an individual to make choices is an inextricable part of dignity and when two adults choose to marry out of their own volition, they have a right to do so.
Relying on these two judgements, the petitioners claimed that like all persons have a right to marry, Queer people too have a right to marry (Queer is being used as an umbrella term for all non-cisgendered & non-heterosexual people in this series).
CJI D.Y. Chandrachud arrived at his pronouncement in a way different to that of other judges. He states that Entry 5 of the Concurrent list (List III) of the Seventh Schedule of the Constitution grants powers to the state to regulate Marriage, Divorce, Adoptions, Succession etc and this, is the reason why the State can regulate the institution of Marriage. If there is a Fundamental Right to marry, he states, then the state would be obligated to create the institution even without Entry 5 and such argument cannot be accepted.
To put it in rather simple words, his opinion says that marriage was a mere social institution but with state’s regulation via different acts such as Hindu Marriage Act, SMA etc, marriage has attained more significance. However, its significance is not entrenched in the Constitution. He stated that with issues like privacy and right to education in the cases of Justice KS Puttaswamy vs. Union of India[(2019) 1 SCC 1] and Unnikrishnan vs. State of Andhra Pradesh [1993 SCC (1) 645] respectively, their significance could be traced back to Constitutional Values and consequently Article 21- therefore they were declared as fundamental rights. Marriage is unlike privacy and education, meaning that the Constitution does not recognise a fundamental right to marry. He stated that the recognition for and meaning of the institution of marriage which the petitioners want for themselves is not accorded by the constitution but by a statute.
Justice Ravindra Bhat, writing for himself and on behalf of Justice Hima Kohli, took a different approach to arrive at the pronouncement that there is no right to marry.
He traced back marriage to a period when state was not in existence and therefore, declared that the source of marriage is external to the state, and the source defines the boundaries of marriage. He states as follows:
“This implies that 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 defines 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.”
He stated that there are two competing claims with respect to the nature of marriage- one says that the state should exercise more control, and another says that it should exercise minimal control. He consequently stated that even if there was indeed a right to marry, it cannot be operationalised unless it is elevated to the status of Article 17 (Prohibition of Untouchability), Article 23 (Prohibition of Traffic in Human beings), Article 24(Prohibition of employment of Children in factories etc). Therefore, the court cannot compel the creation of a social institution, he stated, by recognising a fundamental right to marry. 
To put in simple words, the State cannot grant a fundamental right that would have the effect of creating an institution that it had no hand in creating or will have no hand in abolishing.
Finally, Justice P.S. Narasimha had a slightly different or perhaps an additional way to Justice Bhat’s way to arrive at his pronouncement that there is no fundamental right to marry. First, he stated that legislations on marriage have accommodated customary and religious practices, and this synchronously occupied institutional space of marriage is a product of our social and constitutional realities, and therefore, right to choose a spouse and the right of a consenting couple to be recognised within the institution of marriage is restricted. The space granted to customary practices is also conditions by the right to religion and right to culture, sanctified in Articles 25 & 29 of the Constitution, he stated.
Contradictions in the Verdict of Five Judges
The ways judges have arrived at the denial of the fundamental right to marry are not only peculiarly one of a kind, but they also contradict each other.
The CJI’s opinion on one hand says marriage’s significance is attributable to the state’s legislation rather than Constitutional Principles, therefore, there is no right to marry. Justice Bhat’s opinion on the other hand states that marriage’s significance exists outside of the state and therefore, the State cannot be tasked to effectuate a right to marry, by the court.
The question that arises when one looks at both ways is whether it is a requirement for an institution to be disconnected/connected to the State’s efforts, for it to be declared as a fundamental right.
In Virender Gaur vs. State of Haryana [(1995) 2 SCC 577], the Supreme Court stated that protection and preservation of the environment, ecological balance free from pollution as part of Article 21. It stated as follows: Article 21 protects the right to life as a fundamental right. Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Any contraacts or actions would cause environmental pollution. Environmental ecological, air, water, pollution, etc. should be regarded as amounting to violation of Article 21.
In Francis Coralie Mullin vs The Administrator[1981 SCC (1) 608], the Supreme Court held that the right to life includes “the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.” Although the court conditioned these rights on the economic capabilities of the State, the court did not even require the necessity of tracing of constitutional values for recognising these rights.
By the time the court had delivered the judgement in the case of Virender Gaur, there were multiple acts governing the mere social understanding to have sanitary spaces by way of the Air (Prevention and Control of Pollution) Act, 1980, Environment Protection Act, 1986 etc. Despite the extensive state legislation granting importance to concepts such as sanitation and environmental degradation, the court did not restrain itself from tracing the rights to sanitation to Directive Principles of State Policy- Article 48A (Protection and Improvement of Environment and Safeguarding of Forests and Wild Life) and Article 47(Duty of State to raise the level of nutrition and standard of living and to improve public health). One could argue that there is no directive principle or any other Constitutional provision that the right to marriage could be traced back to. However, Article 38- casts a duty on the state to secure a social order for the promotion of welfare of people. Article 38(1) states — “The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.”
If the state is duty bound to protect a social order in which social justice informs all institutions of national life, the right to marry a person, for a non-heterosexual person forms part of the social justice principle since the same right is accorded to cisgendered-heterosexual people. Given the unanimous agreement by the whole bench about the discrimination faced by the queer people across the country even today, this interpretation would have given effect to the constitutional values to deliver social justice to people. CJI does mention Article 38 as he goes on to discuss the right to enter a civil union, but his opinion does not provide any cogent reasoning as to why the same tracing cannot be done between fundamental right to marry and Directive Principles as under Article 38. Justice Kaul, in his concurring opinion with the CJI mentions Article 38 when he bats for an anti-discrimination law but nothing more on that is stated. Justice Kaul states that the anti-discrimination legislation would “also be in furtherance of the positive duty of the State to secure social order and to promote justice and social welfare under Article 38 of the Constitution.”
Coming to Justice Bhat’s opinion, he has held that since marriage is an institution which is independent of the state with respect to its boundaries and source, the Court cannot give a fundamental right to marry which would necessitate the State to take up the obligation to create an institution of marriage for Queer people. Additionally, Justice Bhat also spends efforts in differentiating between the Marriage system in the United States where only a licenced marriage by the United States’ government is a recognised marriage and marriage system in India where there is no need to do so. However, there is no reasoning provided in Justice Bhat’s opinion regarding how the minimum criterion in different marriage acts for a marriage in India to be valid cannot be equated to the licence regime in the United States. There is only a broad proposition, in Justice Bhat’s opinion, that marriage exists independently of the state in India unlike in the United States but no further examination of such a proposition, which if done, would reveal that a similar system also exists in India and gets triggered when the couple wants the State to be involved in matters such as dispute resolution etc. This is highlighted by the CJI himself in this judgement itself in a section under which he responds to Justice Bhat’s observations on various disagreements. Such further examination would also reveal that the competing claims that he has noted with respect to wanting or not wanting state influence in marriage also would fall since in that paradigm, both the petitioners and the ones claiming that marriage should be between biological man and woman will approach the state.
Justice P.S. Narasimha’s opinion, while agreeing with Justice Bhat’s opinion-thus having the same contradictions- also had additional reasons as to why there is no fundamental right to marry. He says that the existence of customary accommodations aided by constitutional articles such as Articles 25 & 29 of the Constitution mandates the right to marry and the facets of it are restricted. This is a reasoned observation since there are competing rights over an institutional space of marriage coupled with state interest, there are restrictions on the right to marry. These restrictions are already materialised in the forms of prohibited degrees of relationships, age of parties to marriage etc. He however goes on to equate claiming for a right to marry to a claim to create a legal and socially enforceable status.
However, for example, the grant of Right to Privacy as a fundamental right in Justice K.S. Puttaswamy’s case did not materialise into a claim for a legal regime for privacy. Although it could be differentiated from the current Supriyo Chakraborty case by saying that the petitioners in the latter case did ask for a substantive reading in of provisions of SMA- it is important to note that the Judicial Creativity that was used in devising ways to arrive at the pronouncement to deny the right to marry, would surely have been successful in arriving at conclusions which would have granted right to marry without causing judicial overreach, to non-heterosexual couples, who face much discrimination, as agreed by the Court.
While the right to marry was only one of the many reliefs prayed for by petitioners, the reasoning employed to deny it has created a jurisprudence that is not only tricky and difficult to navigate but also goes contrary to the established jurisprudence over positive obligations of the state, especially due to the fact that the positive obligation to remedy a social institution in which the state has had less interference in is under scrutiny, due to the majority’s opinion.
In the next part of this series, the right to enter a Civil Union and the disagreements between CJI and Justice Bhat will be discussed.
(The author is an intern with the organisation)
 2023 INSC 920
 (2018) 16 SCC 368
 (2018) 7 SCC 192
 Para 182, Page 138, Supriyo Chakraborty vs. Union of India, https://main.sci.gov.in/supremecourt/2022/36593/36593_2022_1_1501_47792_Judgement_17-Oct-2023.pdf
 Para 184, Page 140, Supriyo Chakraborty vs. Union of India.
 Para 45, Page 290, Supriyo Chakraborty vs. Union of India.
 Para 47, Page 291, Supriyo Chakraborty vs. Union of India.
 Para 12, Page 362