The Supreme Court of India will review pleas on January 9, challenging its October 2023 ruling that denied legal recognition for same-sex marriages. The five-judge bench will evaluate around 13 petitions. Despite denying legal status, the court emphasized LGBTQIA++ rights and highlighted the necessity for legislative action for marriage recognition.
New Delhi: A five-judge bench of the Supreme Court will convene on January 9 to review pleas challenging its October 2023 decision that declined legal recognition to same-sex marriages. The bench, comprising Justices B R Gavai, Surya Kant, B V Nagarathna, P S Narasimha, and Dipankar Datta, will evaluate around 13 petitions related to the matter in chambers.
The Supreme Court, adhering to its standard practice, will consider the review pleas in chambers without an open-court hearing. This decision follows Justice Sanjiv Khanna, the current Chief Justice of India (CJI), recusing himself from hearing the petitions on July 10, 2024. The new bench includes Justice P S Narasimha, the sole member from the original five-judge Constitution bench that delivered the October 2023 judgment.
The original bench, led by former CJI D Y Chandrachud, had unanimously refused to recognize same-sex marriages under the law, stating,
“There is no unqualified right to marriage, except those recognized by law.”
The judgment underscored that granting such recognition would fall within the purview of Parliament, requiring legislative action.
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Delivered on October 17, 2024, the Constitution bench issued four separate judgments on a batch of 21 petitions seeking legal backing for same-sex marriages under the Special Marriage Act. Despite declining legal recognition, the Supreme Court strongly advocated for the rights of LGBTQIA++ individuals. It emphasized:
- Non-discrimination in access to goods and services.
- Establishment of “garima grehs” (safe houses) in all districts for community members facing harassment or violence.
- Dedicated hotlines for LGBTQIA++ persons in distress.
The court also affirmed that transpersons in heterosexual relationships have the right to marry under existing legal provisions. However, it clarified that creating a legal framework for same-sex unions or marriages would require an “enacted law.”
The five judges had varying perspectives in their judgments:
- Former CJI Chandrachud, in his 247-page verdict, underscored solicitor general Tushar Mehta’s assurance of forming a committee chaired by the cabinet secretary to define entitlements for LGBTQIA++ couples in unions.
- Justice Kaul, in his 17-page judgment, largely agreed with Chandrachud but maintained a nuanced stance.
- Justice Bhat, writing an 89-page verdict for himself and Justice Kohli, differed on key issues, including adoption rules for same-sex couples.
- Justice Narasimha, in his 13-page opinion, fully endorsed Justice Bhat’s conclusions.
All judges unanimously affirmed that “queerness is a natural phenomenon and not an urban or elite notion.”
The petitions argue for the court to leverage its plenary powers and “prestige and moral authority” to validate same-sex marriages. Activists believe this step is critical to ensuring that LGBTQIA++ individuals can lead dignified lives akin to their heterosexual counterparts.
They also seek consequential reliefs such as:
- Adoption rights.
- Joint enrolment as parents in schools.
- Opening joint bank accounts.
- Succession and insurance benefits.
The Supreme Court’s causelist indicates the review petitions will be considered at 1:55 PM on January 9. This hearing holds the potential to shape the future trajectory of LGBTQIA++ rights in India.
As the apex court revisits its stance, advocates for LGBTQIA++ rights remain hopeful for progressive strides toward equality and dignity for all.
Case Title : Supriyo @ Supriya Chakraborty and another vs.Union of India | RP (c) 1866/2023 and connected cases
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