Facts:
There were a series of petitions filed before the Supreme Court challenging the
constitutional validity of the Special Marriage Act, 1954 (“SMA”) on the ground that
Section 4(c) of the Act only recognizes marriages between a male and a female and
this amounts to discrimination as it denies transgender persons and persons of the
same sex getting married. The petitions sought that the Supreme court should read
the SMA to include marriage for all ‘persons’ irrespective of sexual orientation and
gender identity.
Court Decision and Reasoning:
The case was decided by a 5-Judge Bench. The majority and minority opinions
unanimously held that there is no fundamental right to marry guaranteed by the
Constitution. The Court held that the right to marry could only be a statutory right
guaranteed under the Special Marriage Act and not a fundamental right. Justice D Y
Chandrachud, the Chief Justice in his minority opinion held that queer couples have
the right to form civil unions, holding that each person’s right to intimate associations
is protected under the right to freedom of speech and expression under Article 19(1)(a)
of the Constitution. Justice S.K. Kaul concurred with the Chief in his separate opinion,
noting that the right to form a union is available to all individuals regardless of their
sexual orientation and gender identity. The majority however, while noting that
individuals have the right to form relationships with a partner of their choosing, held
that such right could not read to include a civil right to union as ordering a social
institution would require a separate legal framework which would include a bouquet of
other rights that are ancillary to marriage. However, the Court ruled positively on the
right of transgender persons to marry. Transgender and intersex persons who identify
as male or female, have the right to marry members of the opposite sex under the
Special Marriage Act and all other laws. The laws must be harmoniously interpreted,
especially in view of the enactment of the Transgender Persons Act, 2019 and the
provisions of the laws on marriage must not be read to exclude transgender and
intersex persons as that would amount to discrimination.
Significance:
This is among the most significant cases to have been decided by the Supreme Court
in the recent years on the issues of rights of LGBTQI+ persons in India paving way for
legal recognition of marriages between transgender persons and also granting them
access to the ancillary benefits including adoption, insurance benefits and social
security benefits that a spouse may be entitled to as per law.