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Key Takeaways Of Judgement: Same Sex Marriage

The Constitution Bench of the Hon’ble Supreme Court of India vide its judgment dated October 17, 2023, in Supriyo @Supriya Chakraborty and Anr v. Union of India W.P.C No. 1011 of 2022, has declined to recognize the right of same-sex couples to marry or have civil unions. The Constitution Bench comprised of Hon’ble Chief Justice of India (CJI) DY Chandrachud, Justice SK Kaul, Justice S Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha, delivered four separate judgements.

The majority opinion was delivered by Justice Bhat and Justice Kohli with Justice Narasimha delivering a separate concurring opinion. However, CJI DY Chandrachud and Justice SK Kaul each penned a dissenting judgment.

All the judges unanimously agreed that there is no absolute right to marriage, and same-sex couples cannot assert it as a fundamental right. The Hon’ble Supreme Court also unanimously rejected the challenge to provisions of the Special Marriage Act.

The majority judges also asserted that civil unions between same-sex couples are not legally recognized, and that they cannot claim the right to adopt children.

The following are the key takeaways from the verdict:

  1. No Inherent Right to Marriage: Marriage is not an inherent, unqualified right, but rather one subject to statutes and customs.
  2. No Right to Civil Union Without Legal Framework: Legal recognition of civil unions, akin to marriage, can only be established through an enacted law. The Court cannot mandate or create such a legal status.
  3. No Legal Status for Queer Couples: Queer couples have the right to form emotional, mental, or sexual relationships, drawing from the right to privacy, choice, and autonomy. However, this doesn’t grant them legal status or entitlement to union of marriage.
  4. Validity of Special Marriage Act: The challenge to the Special Marriage Act in terms of recognizing same-sex unions is dismissed.
  5. Entitlement to Compensatory Benefits and Welfare Entitlements: Indirect discrimination affecting queer couples regarding entitlement to compensatory benefits or welfare entitlements tied to marital status should be addressed and eliminated by the Central Government.
  6. Establishment of a High-Powered Committee: A high-powered committee (HPC) chaired by the Cabinet Secretary, appointed by the Central Government, should comprehensively examine factors related to same-sex marriage, considering the input of all stakeholders, states, and union territories.
  7. Transgender Persons’ Right to Marry: Transgender individuals in heterosexual relationships are free to marry.
  8. No Right to Adopt Children: Under current law, queer couples do not have the right to adopt. Regulation 5(3) of Central Adoption Resource Authority Regulations (CARA Regulations), which bars unmarried individuals from adopting, is upheld. However, CARA and the Central Government should consider the implications for de facto families where single individuals are allowed to adopt and subsequently enter non-matrimonial relationships.
  9. Protection Against Involuntary Medical Treatment: The state must ensure that the cohabitation rights of queer couples are not violated, and steps should be taken to prevent involuntary medical or surgical treatment of queer and transgender individuals.

-Manishi Pathak, Founding Partner and Ranjan Jha, Partner, Anhad Law

 Disclaimer: The contents of the above publication are based on interpretation, analysis and understanding of applicable laws and updates in law, within the knowledge of authors. Readers should take steps to ascertain the current developments given the everyday changes that may be occurring in India on internationally on the subject covered hereinabove. These are personal views of authors and do not constitute a legal opinion, analysis or interpretation. This is an initiative to share developments in the world of law or as may be relevant for a reader. No reader should act on the basis of any statement made above without seeking professional and up-to-date legal advice.

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Manishi Pathak

  • Designation: Founding Partner
  • Education: M.Sc (1989) L.L.B. (1992)
  • Email: manishi@anhadlaw.com
  • Location: New Delhi, Ahmedabad
ANHAD LAW MANISHI PATHAK

Expertise

Anti-Bribery & Anti-Corruption | Dispute Resolution | Environmental, Social and Governance (ESG) | Employment & Labour | Corporate, Commercial and Regulatory | Government Relations | Mergers & Acquisitions

Manishi Pathak is the Founder and Managing Partner of ANHAD LAW.

Manishi has experience of over three decades. His areas of practice include dispute resolutions, labour and employment, corporate investigations, compliance audit and investigation into non-compliance of anti-bribery and anti-corruption laws, besides advisory and transactional supports on matters involving other corporate and commercial laws.

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Manishi is also known for his expertise in the area of mergers and acquisitions/ joint ventures, corporate restructuring and re-organizations besides his government relations work. 

He has been appreciated by clients for his hands-on approach and for providing solution-oriented sound legal advice which is commercially and practically tenable. He is also known for offering unique blend of analytical thinking and business strategy, while structuring, negotiating and closing complex commercial transactions and resolution of disputes including mediation and arbitration.

Manishi also has vast experience of delivering advisory support in areas of law, including but not limited to contentious commercial disputes, regulatory compliances (involving exchange control regulations in addition to other regulatory matters), compliance advisory under various corporate and commercial laws, rules etc. (under applicable Central and/or State). 

Manishi’s primary area of interest and specialization besides dispute resolution and government relations is Labour and Employment laws. He enjoys a distinguished status and standing in the sphere of Labour and Employment law practice. He is widely recognized as a ‘top ranked specialist’ in this area of practice owing to his deep knowledge and vast experience of dealing with range of matters in the domain of labour and employment laws practice including court litigation and appellate work. 

Manishi has retained most top accolades on offer by leading global legal ranking bodies such as Chambers & Partners, Legal 500 etc., in the field of Labour and Employment laws in India. For over last decade, Manishi and he been retained title of ‘Top Ranked’ ‘Leading Practitioner’, ‘Specialist’, owing to established expertise and in-depth knowledge he possesses in the sphere of Labour and Employment laws practice in India. 

Manishi is considered to be one of the first legal professionals who identified the scope, ambit and applicability of various central and state specific labour and employment legislations in India, while making foreign and Indian multinational corporations having business presence in India recognize the importance of compliance to various labour and employment laws related legislations in India. 

Undisputedly, in the context of Indian scenario, Manishi is regarded as the legal professional who played a pivotal role that lead to recognition and acceptance of ‘labour and employment’ laws as a prominent and established area of practice, amongst other practice areas. 

As the practice head, Manishi is actively involved in advising on a wide range of labour laws related queries, preparation and standardization of employment agreements and other agreements such as non-compete and non-solicitation agreement, non-disclosure and confidentiality agreements, HR policies/handbooks/manuals etc., including structuring of ESOPs, closure of businesses, termination/transfer of employees, other termination related issues, trade union related disputes, social security and/or insurance claims, etc. The Firm predominantly represents companies/corporations and their management on employment related projects and litigation.

Manishi also leads members of the firm on matters involving employment audits, whistle-blower investigations, closure of establishments, transfer of business and undertakings, sexual harassment complaints, employer and employee rights and matters involving trade unions. He is also known for his involvement in investigations and/or enquiries concerning employees including in matters of misconduct by employees and/or associated parties. 

Prior to founding Anhad Law, Manishi has been the Partner of other renowned law firms of India.

Manishi has considerable experience of representing clients belonging to manufacturing as well as services business, across varied sectors including but not limited to automobiles, aviation, banking, chemicals, commerce, electronics, FMCG, information technology, paper, packaging, pharmaceuticals, ports, real estate, retail and telecommunications, amongst others.

Chambers and Partners lists Manishi in Band 1 for Employment Law and he has been recognised as a leading employment law specialist in India since 2013. They have provided the following comments as well: Manishi Pathak commands ‘great respect in the employment market,’ clients valuing him especially as a ‘very experienced partner who brings a lot of insight to particularly complex employment issues.’ He offers significant expertise in the handling of the employment aspects of M&A transactions and in advising international clients on ensuring that their operations comply with Indian employment laws.  Chambers and Partners ranked Manishi as a New Delhi based recognized practitioner in the area of Corporate/M&A for the years 2014 and 2015. He has been ‘Top Ranked’ for 2022 by Chambers and Partners (Asia-Pacific).   Chambers Global ranked him as a New Delhi based recognized practitioner in the area of Corporate/M&A for the year 2014 and 2015.  Asia Law Profiles 2022 has ranked him as an “Elite Practitioner’ for Labour & Employment Law in India. He was also earlier listed by Asia Law Profiles in 2017, 2019 and 2020.  He has been listed in the Who’s Who Legal of Indian practitioners in the field of Labour & Employment law since 2009.  Legal 500 has further recognised him amongst India’s leading lawyers for the last several years including 2021. 

He has authored several publications on Indian Labour & Employment law for Kluwer Law and Law Business Research and he writes and speaks regularly on a range of subjects, including foreign investment in India and Labour and Employment law. 

Some of his prominent publications include “Restrictive Covenants” (India Chapter) by Kluwer Law Publication; “Hiring and retaining Talent” (India Chapter) by Kluwer Law Publication; “Getting The Deal Through (Labour & Employment)”, India Chapter by Law Business Research; Labour and Employment Compliance in India, 9 editions, published by Kluwer Law since 2008 including of 2021. 

He has also authored “India Chapter on Employment Law in the Employment Law Review” by Law Business Research since 2010 -15. Manishi also contributed to National Law School Publication (Business Law Review) “An overview of contract labour related laws in India”. He has also contributed to the World Bank Group‘s publication Employing Workers 2021. 

Manishi is a member and was an officer of the Employment and Industrial Relations Law Committee of the International Bar Association (IBA). He is also a member of the Delhi High Court Bar Association and Inter Pacific Bar Association (IPBA).

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  24. Any cause of action or claim you may have with respect to these Terms of Use or the Website must be commenced within six (6) months after the claim or cause of action arises or such claim or cause of action shall be barred.
  25. You may not assign or transfer your rights or obligations under these Terms of Use without the prior written consent of Anhad Law, and any purported assignment or transfer in violation of this provision shall be null and void.
  26. Anhad Law causes the control and maintenance of this Website from India. Anhad Law makes no representations that the information and material contained in this Website are appropriate or permitted for use in jurisdictions outside India.
  27. These Terms of Use are governed by the laws of India without giving effect to any principles of conflicts of laws.
  28. The usage of the Website by the user is subject to the exclusive jurisdiction of the courts located in Delhi without prejudice to the right of Anhad Law to take action in any jurisdiction whatsoever.
  29. Anhad Law reserves the right to investigate complaints or reported violations of these Terms and to take any action we deem necessary and appropriate. Such action may include but not be limited to reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties. In addition, Anhad Law may take action to disclose any information necessary or appropriate to such persons or entities relating to user’s profiles, e-mail addresses, usage history, IP addresses and traffic information.
  30. Anhad Law reserves the right to seek all remedies available at law and in equity for violations of these Terms of Use and/or the rules and regulations set forth on the Website, including without limitation the right to block access from a particular internet address.
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