Authored by Aashutosh Jagtap and Tridha Gosain, 5th year and 3rd year students at DNLU, Jabalpur respectively
The Supreme Court in the case of Supriyo v Union of India, wherein the court, with a majority of 3:2, declined the case of Petitioner of granting the legal status to same-sex marriage. The court speaks through multiple opinions and ultimately held that since there is no fundamental right of marriage, non-recognition of the union of non-heterosexual couples will not ultimately violate the rights guaranteed by the Constitution. It is the effort of the authors to critically analyze the judgment to decide the moral legitimacy of the Judgment. The Authors argue that while the court's authority is confined to adjudicating the roles of the legislature and executive, the majority opinion did not strongly wield its power to represent the voice of the minority, which sought judicial assistance. It is well known that the judiciary cannot enter into the domain of the legislature. However, the contrasting judgment of the majority and minority judgment in the present showcases the different pictures which will be dealt with at length in the present article. It is pertinent to note that the minority opinion by CJI gave a voice to the marginalized community and also provided certain guidelines which must be adhered to by the executive to deal with the rights of the LGBTQ community. However, it fails to remedy the recognized rights of the marginalized community.
The Test of Moral Legitimacy
Any judgment of the apex court can be tested on three grounds i.e. Legal Legitimacy, Moral Legitimacy, and Sociological legitimacy. In this article, the author is limited to assessing the judgment only based on Moral Legitimacy. The legal legitimacy i.e. whether the judgment is based on settled principles of law and whether the court has over-exercised its power or not can be assessed here. The sociological legitimacy as defined by Prof. Sudhir Krishnswamy, is yet to be seen from the inner circles of the stakeholders. Moral Legitimacy, as he defines means that a judgment is respect-worthy and capable of moral justification. In other words, a judgment is said to be morally justified when it at least deserves our respect, if not our obedience. He further defines the ambit of moral legitimacy in cases of fundamental rights, as “concerned with the personal morality of citizen action or the consequences of state action of the moral choices of citizens”. Thus, the question that needs to be asked here is whether the Apex Court has been able to raise the voices/concerns of the minority community, in the present context LGBTQ Community? Whether the judgment expands the scope of Judicial review of the courts? Whether the court has interpreted the provisions of the Constitution in such a way that it does not create any hindrance in the exercise of the rights of the community? And the most important among them all is whether the court through this judgment has provided such an environment where the moral choices of the community are benefitted. The answer to this question lies within the opinion of the court.
The judgment of the court is overly liberating, not only to the issue at hand but also to the rich fundamental rights jurisprudence. The judgment, while providing an extensive interpretation of the constitutional provisions, also somewhat elucidates that social morality plays a significant role in shaping the dimensions of fundamental rights. However, the constraints of social morality must be within the limits of Constitutional morality. Based on this, the court provides the maximum scope of the Judicial Review. Further, the domain of personal rights shall also be in line with Constitutional morality and most importantly the role of the court in dealing with and deciding the minority rights in accordance with the provisions of the constitution.
The reason for the test of judgment through the lens of moral legitimacy is because the issue with which the court dealt is not limited in its effect on the jurisprudence of sexuality and sexual orientation, but has a condescending effect on the overall individual-centric (fundamental right) approach of the court. The reading of Part III of the Constitution as providing both positive and negative rights to its citizens has taken a jilt in the present case. The jurisprudence that has evolved through the cases of Anuj Garg, Babita Punia, Sabrimala, Navtej Singh Johar, Joseph Shine, Lt. Col. Nitisha, and many others has to some extent not followed in the majority opinion of the court.
The Contrasting Opinions
The minority Judgment of the court is partially morally legitimate for obvious reasons. First among them, is the recognition of the boundaries by the court. The court, in deciding the issues, has taken extreme caution in not only recognizing the issues at hand but also reminding itself of the boundaries to not enter into the domain of legislature and executive. Further, the Court also recognized its boundaries in entering into the domain of personal laws and private affairs of the individual but also kept in mind that those affairs must align with the constitution, as far as possible.
Thus, CJI, in its opinion held that the personal affairs of the individual must be free from any interference of the state or any other individual. At the same time, it shall not act against the interest of the other person. If such a case arises, the state must interfere to remedify the weaker party against the clutches of the power within the limit of the Constitution. The court also recognizes the fact that marriage although a volatile concept changes with the change of time. However, the changes must not be advanced by the Judiciary. Any changes or reforms pressed by the legislature or through society for overall acceptance. It is for this reason that same-sex marriage cannot be read into the provisions of the Special Marriage Act, 1954.
Additionally, the court accepts the fact that any concept of marriage that is contrary to the idea of society cannot be discarded solely based on uncommonality or contrary beliefs. However, it is at the Parliament’s discretion to accept or reject the concept constitutionally. It is the Constitution which must prevail all the time. Further, the difference of opinion can be seen in the minority and the majority opinion of the court for not recognizing same-sex marriage. The majority traced the recognition through social morality on the other hand CJI through its judgment also balances both approaches and, emphasizes the idea of Constitutional morality.
Further, the flux of the judgment can be traced when the court in order to address the concerns of the community, laid certain recommendations to the government ranging from non-discrimination of the community to formulation of the committee headed by Joint Secretary “to define and elucidate the scope of the entitlements of queer couples who are in unions”. Although the court denies the civil union of the community, the court declares CARA guidelines unconstitutional to the extent it denies the right of adoption to the community.
Comparative Analysis with Madras High Court
The judgment of the Apex Court though, gave the voice to the community. However, the non-recognition of certain rights dwindles the moral legitimacy of the judgment. The courts in various other instances like in the case of Vishakha and the dissent of Justice H R Khanna in the ADM Jabalpur case though deviate slightly from legal legitimacy. However, stands firm on moral legitimacy. Thus, the judgment of the court can be termed as moderately legitimate.
When the Madras High Court faced a similar issue. The High Court not only emphasized upon the hardship and discrimination faced by the LGBTQIA+ community but also, in a limited role provided a remedy to those hardships. Additionally, the court also recognized, although indirectly, the right of the civil union of homosexual couples through a “Deed of Familial Association” (DFA). This deed aims to provide legal protection and recognition to LGBTQIA+ partners, safeguarding their right to live in a relationship without fear of harassment or discrimination. Notably, the court sees merit in this proposal, aligning it with the rights guaranteed under Article 21 of the Constitution - the right to life and personal liberty.
The court when posed with the question of recognition of the civil union of LGBTQ couples after the judgment of Supriyo (supra). The court also directed the state government to frame a policy for the LGBTQ community while considering DFA. The fundamental change in the approach of the Hon’ble Supreme Court and Madras High Court while dealing with a similar issue is that the latter court paved the path for the recognition, unlike the apex court which rolled the ball in the court of legislature. The Madras Court stated in the judgment to the legislature to “...come up with a procedure for registration of such Deed of Familial Association and the scope of such a Deed…” Thus, the court, in essence, had recognized the civil union of the LGBTQ couples, and now it is upon the legislature to determine the scope of such relation.
Judicial Role as a Sentinel
Thus, in the context of moral legitimacy and the questions posed above, the court not only interpreted the provisions in such a manner that benefitted the LGBTQ community but also recognised the fact that whenever required the court will become the voice of the unheard. Additionally in the true sense, the court acted as a “Sentinel On The Qui Vive” for the marginalized. In addition to it, the Madras High Court, in its liberating judgment, provides relief that, if effectively implemented, will “give some respect and status to such relationship,” and, most importantly, provide them with some sense of protection
Thus, in conclusion, it can be said that as we navigate through these legal intricacies, the focus on moral legitimacy becomes even more pronounced. Unlike the Apex Court, the Madras High Court's nod towards recognising and protecting the rights of LGBTQIA+ individuals through innovative legal instruments adds a layer to the ongoing discourse. It prompts us to reflect on the evolving nature of constitutional morality and the role of the judiciary in shaping a more inclusive society.
The journey for moral legitimacy in the realm of LGBTQIA+ rights continues, with each judgment contributing to the narrative. The interplay between legal, moral, and societal legitimacy remains dynamic, guided by the evolving understanding of fundamental rights and personal choices. As we navigate this legal tapestry, the quest for a more inclusive and morally justified society remains at the forefront.
 Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine (Oxford University Press, 2010) 189.
 Id, pg -190.
2023 SCCOnline SC 1348, para 145 (CJI D Y Chandrachud).
 S. Sushma v Commissioner of Police  W.M.P. No. 31112 (W.P. No. 7284 of 2021), paras 8 and 9.