Excerpt from Same-Sex Marriage

The right to freedom of speech and expression and to form intimate associations

Article 19(1)(a) of the Constitution recognizes the right to freedom of speech and expression. Freedom postulates within its meaning, both, an absence of State control as well as actions by the State which create the conditions for the exercise of rights and freedoms. Article 19(1)(c) of the Constitution recognizes the freedom to form associations or unions or co-operative societies.

The freedom of speech and expression is not limited to expressive words. It also includes other forms of expression such as the manifestation of complex identities of persons through the expression of their sexual identity, choice of partner, and the expression of sexual desire to a consenting party. Earlier judgments of this Court have held that expression of gender identity is a protected freedom under Article 19(1)(a).

In NALSA v. Union of India (2014), this Court held that the expression of gender identity is a form of protected expression under Article 19(1)(a). In Navtej Johar v. Union of India (2018), this Court held that Section 377 of the IPC infringes upon the freedom of expression of queer persons, protected under Article 19(1)(a).

Courts have traditionally interpreted the right to form an association guaranteed under Article 19(1)(c) to mean associations formed by workers or employees for collective bargaining to attain equitable working conditions. However, the entire gamut of the freedom protected under Article 19(1)(c) cannot be restricted to this singular conception. The ambit of the freedom under Article 19(1)(c) is much wider.

The provision does not merely protect the freedom to form an association to create spaces for political speech or for espousing the cause of labour rights. While that is a very crucial component of the freedom protected under Article 19(1)(c), the provision also protects the freedom to engage in other forms of association to realize all forms of expression protected under Article 19(1)(a).

In Roberts v. United States Jaycees,[1] the US Supreme Court read ‘freedom of association’ widely to include the freedom to form intimate associations. The factual matrix before the Court was that regular membership to the respondent-corporation was restricted to men between the ages of fifteen to thirty-five.

Associate membership was offered to those to whom regular membership was not available. Complaints were filed alleging that the exclusion of women from full membership violated the Minnesota Human Rights Act which made it discriminatory to deny to any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of race, color, creed, religion, disability, national origin or sex.

The US Supreme Court had to decide if any interference with the organization’s membership policy would violate the respondent’s freedom of association guaranteed under the First Amendment.

Justice Brennan, writing for the majority, observed that the freedom of association constitutes two facets-

First, the freedom to enter into intimate human relationships secure from undue state interference (“the intrinsic element”); and

Second, the freedom to form associations to engage in activities protected by the First Amendment such as speech, assembly, and the exercise of religion (“the instrumental element”).

The Court observed that individuals have the freedom to form intimate associations because individual liberty can be secured only when the State does not unjustifiably interfere with the formation and preservation of certain kinds of highly personal relationships.

The Constitution protects such relationships because individuals draw emotional enrichment from close ties such as those created by marriage, children, and cohabitation, which contribute towards identity building and self-development.

Justice Brenan qualified the freedom by observing that only personal relationships (which are characterized by their attributes such as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, the seclusion from others in critical aspects of the relationship) are protected.

Intimate association

Kenneth L. Karst, who developed the idea of the freedom of intimate association argues that the Courts have traditionally not permitted the State to interfere or regulate in certain kinds of personal relationships, thereby elevating it to a distinct freedom. Intimate association is characterized by a sense of collectively which exists beyond two individuals.

One of the prominent ideas embraced by the freedom of intimate association is the opportunity it affords to enjoy the society of the other person who is a part of the relationship and the ability to choose to form and maintain such a relationship.

The opportunity to enjoy the society of one’s partner may be denied either directly or indirectly. It could be denied directly when the law prohibits such an association. The operation of Section 377 of the IPC criminalizing homosexual activity is a form of direct restriction on the freedom of association.

On the other hand, the State could indirectly infringe upon the freedom when it does not create sufficient space to exercise that freedom. A formal associational status or recognition of the association is necessary for the free and unrestricted exercise of the freedom to form intimate associations. Needless to say, there may be reasonable restrictions on this right. However, other than legally valid and binding restrictions, the right to intimate associations must be unrestricted.

The State by not endorsing a form of relationship encourages certain preferences over others. While the tangible benefits of marriage are traceable to the content of law, the intangible benefits are secured merely because State recognises the relationship through the instrument of law. Intangible benefits in the form of expressive advantages exist irrespective of the content of the law. Even if the law does not grant any special material benefits to a relationship, the relationship would still be considered to be legitimate in the eyes of the society.

The freedom to choose a partner and the freedom to enjoy their society which are essential components of the right to enter into a union (and the freedom of intimate association) would be rendered otiose if the relationship were to be discriminated against.

For the right to have real meaning, the State must recognise a bouquet of entitlements which flow from an abiding relationship of this kind. A failure to recognise such entitlements would result in systemic discrimination against queer couples.

The right to settle in any part of India

Article 19(1)(e) of the Constitution stipulates that all citizens shall have the right to reside and settle in any part of the territory of India. In exercise of this right, citizens may reside in any village, town, or city in any state or union territory irrespective of the state in which they were born or are domiciled. Article 19(1)(e) proscribes differentiation on the basis of the native place of a person. As with other fundamental rights, it is subject to reasonable restrictions.

In Maneka Gandhi v. Union of India,[2] this Court observed that it was a historical fact that there were rivalries between some states in the country. It was therefore not beyond the realm of possibility that a particular state would restrain individuals domiciled in another state from residing or settling in the first state.

In view of this, the Court held that the intention behind Article 19(1)(d) (the right to move freely throughout the territory of India) and Article 19(1)(e) was to prevent the states from imposing such restrictions. In this way, the provision was thought to emphasize the unity and oneness of India.

Article 19(1)(e) uses the expressions “reside” and “settle.” The term “reside” can mean either a temporary residence or a permanent residence but there is a certain level of permanency attached to the word “settle” in India. One can reside in a particular place in the course of their education or employment but to settle down in that place means to build one’s life there and reside their permanently.

In P. Ramanatha Aiyar’s Law Lexicon (1997 edition), it is stated:

“The word “settled” has no precise or determinate meaning. In popular language, it intends going into a town or place to live and take up one’s abode. A person is said to be settled where he has his domicile or home.”

Colloquially, people say that a person has “settled down” when they are well established in their careers or when they have chosen a life partner or married somebody.

Citizens of India have the right to settle in any part of the territory of India in terms of Article 19(1)(e). They, like all other citizens, may exercise this right in two ways:

a. First, they may build their lives in a place of their choosing (in accordance with law) either by themselves or with their partner. They may reside in that place permanently (subject to other reasonable restrictions including those intended to protect the rights of tribal communities).

This right is uniquely significant to persecuted groups (such as queer persons, inter-caste couples, or interfaith couples) who migrate from their hometowns to other places in the country, including cities; and

b. Second, they may “settle down” with another person by entering into a lasting relationship with them. In fact, this mode of the exercising the right under Article 19(1)(e) is encompassed by the first mode because to many people, building a life includes choosing their life partner. Hence, the right to enter into a union is also grounded in Article 19(1)(e).


Supriya @ Supriyo Chakraborty v. Union of India (2023)

[1] 468 U.S 609 (1984)

[2] (1978) 1 SCC 248