FROM TOONEN TO CHAKRABORTY: INDIA'S JUDICIAL INACTION AMID GLOBAL HUMAN RIGHTS PROGRESS

Abstract

Last year, the Supreme Court of India (SC) in Supriya Chakraborty v. Union of India (2023), placed itself at far odds with India’s binding international obligations under the International Covenant on Civil and Political Rights (ICCPR). While the SC recognised that the right to choose a life partner is intrinsic to personal choice and autonomy under Article 21, it nonetheless refrained from affirming right to marry as a fundamental human right flowing from it, despite international obligations and comparative precedent. This omission is particularly stark given the Court's own evolving jurisprudence around autonomy under Article 21, including its expansive readings in Navtej Singh Johar and Justice K.S. Puttaswamy. Instead, the SC deferred it to the Legislature’s discretion. This article argues that the right to marry is indeed a human right, protected under Article 16 of the Universal Declaration of Human Rights, 1948 (UDHR) and Article 23 of the ICCPR.

Further, by drawing parallels from Nicholas Toonen v. Australia (1994), and the Inter-American Court of Human Rights’ (IACtHR) rulings, this blog argues that excluding same-sex couples from civil marriage constitutes unlawful discrimination. This blog further critiques the SC’s selective indulgence with international legal obligations in in Supriya Chakraborty v. Union of India (2023), and how it was India’s lost opportunity to read the fundamental right to marry into the Indian constitution and ensure gender equality amongst all orientations in India.

Right to Marry: Universal & Indivisible

What many take for granted can be a profound loss for others who are arbitrarily deprived of the same enjoyment of rights. In India, beyond the precedents that recognize private same-sex relations among adults to be a part of one’s privacy, India’s international obligations demand deeper scrutiny.

We contend that the Right to Marry is a fundamental right which originates from Article 16(1) of the UDHR which clearly states that “men & women of full age have the right to marry & start a family.” This is also complemented by Article 23(2) of the ICCPR which also guarantees the “right of men and women of marriageable age to marry and to found a family shall be recognized, subject to national laws.”

But since these foundational texts explicitly state “men and women,” it is naturally susceptible to concerns of exclusion of people from different sexual orientations and gender identities. However, in the 1990s, the U.N. Human Rights Committee (UNHRC) after taking cognizance, expanded anti-discrimination protections by reading “sexual orientation” into “sex” under Articles 2 and 26 of the ICCPR in Nicholas Toonen v. Australia (1994). This consequently extended the treaty’s non-discrimination provisions to the broader scheme of the rights it intends to protect. This reading has been further reinforced by General Comment No. 18 (1989) and General Comment No. 19 (1990), where the UNHRC emphasized that the right to marry and found a family must be interpreted in conjunction with the ICCPR's anti-discrimination principles. In subsequent communications, the Committee has held that denying rights on the basis of sexual orientation violates Article 26.

Hence, we contend that to harmonise all the provisions and to ensure consistency, the recognition of sexual orientation as a protected status must be applied uniformly throughout the treaty, including the right to marry and enter civil unions under Article 23. Therefore, Therefore, once “sexual orientation” is recognized as a protected ground under the ICCPR, States cannot justify discriminatory exclusions in any ICCPR right including marriage. The key point is the systemic application of anti-discrimination norms across the Covenant. Therefore, it is reasonable to infer that marriage is a fundamental right that must be upheld without discrimination based on sexual orientation.

Shifting to the western hemisphere, a similar approach has been adopted by the IACtHR in 2012 in Atala Riffo v Chile (2012), which marked the start of this Court’s jurisprudence on sexual orientation based discrimination. IACtHR has declared “sexual orientation” as a protected category under Article 1.1 of the American Convention on Human Rights (ACHR). Hence, the principle of non-discrimination goes beyond merely identifying as homosexual; in fact, it covers “expression” and its “ensuing consequences” for a person’s life. Hence, as argued for ICCPR, this implies that for a coherent interpretation of the ACHR, all rights must be applied equally for all sexual orientations, including the right to marry, without exception. This was also complimented by IACtHR’s Advisory Opinion OC-24/17 (2017) which was widely accepted by countries.

Furthermore, in advocating for the fundamental right to marry, the Yogyakarta principles become essential. These principles, although, non-binding, are vital in global conversation on LGBTIQ+ rights. They have been increasingly cited by UN bodies and regional courts, thereby gaining quasi-normative authority. India itself has relied on soft-law instruments in cases like Vishaka v. State of Rajasthan (1997), establishing their relevance in constitutional reasoning. Therefore, soft-law norms should not be casually dismissed in judicial deliberation; rather, they reflect the growing recognition of same-sex marriages and civil unions, pushing for marriage equality for lesbian, gay, bisexual, transgender and intersex people.

India’s Missed Opportunity in Advancing Human Rights

Given the widespread domestic and international advocacy relating to marriage equality, the gravity of India’s failure to acknowledge this right not only violates its international obligations but places it out of step with global stance, reflecting poorly on India as a nation. In landmark cases concerning gender equality and reproductive rights, the Court has emphasized its proactive role in upholding constitutional guarantees, even in the absence of enabling legislation. By declining to recognize the right to marry for same-sex couples on grounds of legislative readiness, the Court failed to discharge its constitutional duty.

India has seen progressive judgements such as in Navtej Singh Johar v. Union of India (2018) in the past which decriminalized homosexuality recognising personal dignity and autonomy and sexual orientation to be intertwined. However, the SC’s approach in Supriya Chakraborty v. Union of India (2023) shows more than a mere paradox – it signals a doctrinal inconsistency and a regressive departure from the Court’s earlier commitment to transformative constitutionalism. This principle, clearly evident in the above-mentioned decisions emphasises on a dynamic interpretation of the Constitution that evolves with changing societal values and international human rights standards. Recalling the unfortunate case of Vishaka v. State of Rajasthan (1997), the SC demonstrated its willingness to rely on international instruments like CEDAW General Recommendation No. 19 to bridge legislative gaps to and safeguard fundamental rights under Articles 14, 19, and 21. The failure to do so in Chakraborty weakens the credibility of the Court’s human rights jurisprudence and diminishes India’s standing in the global human rights community.

Yet, in Supriya Chakraborty v. Union of India (2023), the Court lost the opportunity to place reliance on India’s clear obligations under the ICCPR and UDHR while declaring the right to marry not as a fundamental right. This is not merely a paradox but a doctrinal inconsistency and a marked departure from the transformative constitutionalism that the Court has previously embraced in judgments like Navtej Singh Johar and Justice K.S. Puttaswamy. The Court's deferral to the legislature in this context is constitutionally problematic, as it implies that rights adjudication depends on legislative readiness - a notion the SC has consistently rejected, particularly in its jurisprudence on gender equality and reproductive rights. More critically, this contradiction reveals a pattern of selective application of international law, where the Court appears to weigh the moral palatability of issues before invoking external legal commitments. This practice reinforces majoritarian limits on fundamental rights and undermines the consistency of constitutional interpretation. It is not that international law was ignored - it was strategically filtered to suit the perceived acceptability of the issue at hand. Such inconsistency weakens the legitimacy of the Court’s human rights commitments and damages India’s international reputation as a constitutional democracy committed to dignity and equality.

However, the paradox was Chief Justice DY Chandrachud relying on these instruments in the later part of the judgement to prohibit “conversion therapies,” which it condemned as cruel and inhuman treatment. Hence, the SC not only legally erred in not relying and taking into account the global discourse but also erred in selectively using international obligations in the judgement. The SC has contradicted its own practice of interpreting constitutional rights in line with binding international obligations.

Moreover, the Court applies international law selectively based on the moral palatability of the issue, thus reinforcing majoritarian limits on fundamental rights. It is not that international law was ignored, it was strategically filtered.

Conclusion

Hence, this contradiction of the SC with its own practice, and not upholding right to marry as a fundamental right places it at far end discerningly disconnecting it from the global diaspora on this issue. The aftermath of this inconsistency is profound. The LGBTQ+ community in India remains in a precarious legal position, denied access to marriage equality and the rights that accompany it. This exacerbates structural inequalities exacerbating the challenges same-sex couples face in areas such as inheritance, adoption, taxation, and healthcare.

A Constitution committed to dignity and equality cannot remain silent on the question of marriage equality, especially when international law and comparative practice demand affirmative recognition. Excluding same-sex couples from marriage violates Articles 14, 15, and 21 of the Indian Constitution, especially in light of evolving international norms, and should be judicially remedied without legislative preconditions with urgency.

Author: Anushka Rao

Co-Author: Akshar Jindal