The Supreme Court on Thursday agreed to hear a batch of petitions challenging the Constitution Bench judgement of the Apex Court, which refused to grant legal recognition for queer marriages in India.

The matter was mentioned by Senior Advocate Mukul Rohatgi, seeking an urgent hearing on the same.

Noting that the matter was listed for November 28, the former Attorney general of India requested the Apex Court that it should not be deleted.

He submitted that the review petitions should be heard in open court since the Constitution bench which delivered the verdict had denied relief despite all the judges on the bench agreeing that denial of right to marriage between persons of same gender amounted to discrimination against such persons.

He said that if there was discrimination, then there has to be a remedy. Lives of a large number of people depended on the verdict, added the Senior Advocate.

The Bench led by Chief Justice of India DY Chandrachud observed that it had not gone through the petitions.

The Apex Court said that it would look into the pleas and then decide.

The review petitioners argued that the verdict amounted to abdication of the Court’s duty to uphold and protect fundamental rights.

One of the pleas submitted that the verdict suffered from ‘errors’ apparent on the face of the record, calling it ‘self-contradictory’ and ‘manifestly unjust’. 

It said the Apex Court recognised that the petitioners’ fundamental rights were being violated by the State through discrimination, but failed to take the logical next step of prohibiting this discrimination.

On October 17, the Constitution Bench of five judges, in an unanimous verdict, had refused to grant legal recognition to same-sex marriages, while holding that same-sex couples were not be discriminated against or harassed.

The Apex Court was divided over granting adoption rights to homosexual couples with a 3:2 verdict against giving such entitlement.

The Bench was unanimous also in saying that the right to marry cannot be given the weightage of a fundamental right.

It held that the law did not recognise the right to marry or the right of same-sex couples to enter into civil unions till the Parliament made laws enabling the same.

The CJI said that he has dealt with the issue of judicial review and separation of powers. The Doctrine of separation of powers meant that each of the three organs of the state performed distinct functions. No branch could carry out any others’ function, he added.

The Apex Court said that the Union of India suggested that this Court would violate the doctrine of separation of powers if it determined the list. But the doctrine of separation of powers did not bar the power of judicial review, it added.

The CJI said that queerness was neither urban nor elitist. Summing up, he said that the Apex Court was recording the statement of the Solicitor General that the Union Government would constitute a committee to decide on the rights and entitlements of persons in queer unions.

“As per the CJI, the Government of India should proceed with its committee, headed by the Cabinet Secretary, to address the raft of concerns of same-sex couples, including ration cards, pension, gratuity and succession.

Justice Bhat put forward his views, saying that the Court cannot create a legal framework for queer couples as the duty for the same lies with the legislature, noting that several aspects have to be taken into consideration.

Justice Bhat added that denial of benefits such as PF, ESI, pension etc to queer partners may have an adverse discriminatory effect.

The Judge said that addressing these concerns meant a range of policy choices, which involved a multiple legislative architecture.

Justice Bhat said that he, along with other on board judges, agreed with the CJI on the right of transgender persons in heterosexual relationships to marry as per existing laws.

Justice Bhat said that he had the benefit of perusing the concurring opinion of Justice Narasimha and endorse it fully.

Justice Narasimha said that it would not be constitutionally permissible to recognise a right to civil union mirroring a marriage.

Justice Narasimha agreed with the views of Justice Bhat on the constitutionality of the Central Adoption Regulatory Authority (CARA) regulations, while CJI Chandrachud disagreed to the same.

On CARA regulations, CJI Chandrachud said that while the Union of India has not proved that precluding unmarried couples from adopting was in the best interest of the child, CARA has exceeded its authority in barring unmarried couples.

He said the differentiation between married and unmarried couples has no reasonable nexus with CARA’s objective – the best interests of the child. It cannot be assumed that unmarried couples are not serious about their relationship.

CJI Chandrachud said that there was no material on record to prove that only a married heterosexual couple can provide stability to a child.

He observed that CARA Regulation 5(3) indirectly discriminated against atypical unions. A queer person can adopt only in an individual capacity. This has the effect of reinforcing the discrimination against queer community.

The CJI said that the law cannot assume that only heterosexual couples can be good parents. This would amount to discrimination. So the adoption regulations were violative of the Constitution for discrimination against queer couples.

As a result, the CARA circular was violative of Article 15 of the Constitution.

The CJI said he has a disagreement with the judgment of Justice Bhat.

He said contrary to Justice Bhat’s judgment, directions in my judgment does not result in the creation of an institution, rather they give effect to the fundamental rights under Part 3 of the Constitution.

As per the CJI, Justice Bhat also acknowledged that the State was discriminating against the queer community, but didnot exercise the powers under Article 32 to alleviate their plight, he added.

The CJI also noted that Justice Bhat had failed to ascertain if the CARA regulation was discriminatory.

Justice Narasimha added that the impact of the legislative framework in this case required a deliberative exercise and for the same, the legislature waentrusted to do so constitutionally.

This judgement was challenged by way of review petitions.

The first review petition was filed on November 1 by Udit Sood, one of the petitioners in the original case.

The Supreme Court will deliver its verdict on whether same-sex marriages should be legally recognised in India on Tuesday.

The Constitution Bench of Chief Justice of India (CJI) D.Y. Chandrachud, Justice Sanjay Kishan Kaul, Justice S. Ravindra Bhat, Justice Hima Kohli and Justice P.S. Narasimha, after conducting a marathon 10-day hearing, had reserved its verdict on May 11.

The Apex Court began hearing the 20 petitions on the matter on April 18. 

The pleas were filed by various same-sex couples, transgender persons and LGBTQIA+ activists challenging the provisions of the Special Marriage Act 1954, Hindu Marriage Act 1955 and the Foreign Marriage Act 1969 to the extent that these legislations did not recognise non-heterosexual marriages.

During one of the hearings, the Apex Court had observed that it will confine the issue only to the Special Marriage Act and will not touch personal laws. 

The Union of India, which was a party to the case, had initially challenged the maintainability of the petitions on the grounds that the issue fell in the legislative domain.

However later, it agreed to confer certain rights to the couples of same gender, which were short of legal recognition as marriage. 

The Apex Court had asked the Central government whether certain executive instructions could be issued to ensure that same-sex couples had access to welfare measures and social security such as granting them permission to open joint bank accounts and name their partner as nominee in life insurance policies, PF and pension.

The Constitution Bench had further asked the Union of India whether a declaration of right to marry for same-sex couples could be issued, without interfering with the existing statutes. 

The counsels for the petitioners had sought replacement of words ‘husband’ and ‘wife’ in the Special Marriage Act in a gender neutral manner as ‘spouse’ or ‘person’.

The Union government opposed the argument, stating that the Special Marriage Act was enacted with an altogether different purpose in mind and when the same was passed in 1954, the legislature never contemplated bringing homosexual couples under its ambit.

The Central government also said that such an interpretation would disrupt various other legislations which dealt with adoption, maintenance, surrogacy, succession and divorce.

The National Commission for the Protection of Child Rights has recently intervened in the matter, expressing concerns about allowing same-sex couples to adopt a child. 

The Delhi Commission for the Protection of Child Rights, on the other hand, supported the petitions and backed the right of same-sex couples to adopt.

The petitioners were represented by Senior Advocates Mukul Rohatgi, Dr Abhishek Manu Singhvi, Raju Ramachandran K.V. Vishwanathan, Dr. Menaka Guruswamy, Jayna Kothari, Saurabh Kirpal, Anand Grover and Geeta Luthra, along with Advocates Arundhati Katju, Vrinda Grover, Karuna Nundy and Manu Srinath. 

Solicitor General Tushar Mehta appeared for the Union government, while Senior Advocate Rakesh Dwivedi argued for the state of Madhya Pradesh, opposing the petitions. Senior Advocates Kapil Sibal and Arvind Datar also argued opposing the petitions.

(Case title: Supriyo and Anr vs Union of India)

The Supreme Court on Thursday reserved its verdict on a batch of petitions seeking legal recognition for same-sex marriages, after hearing the various parties in the matter for 10 days.

The Constitution Bench of Chief Justice of India D.Y. Chandrachud, Justice Sanjay Kishan Kaul, Justice S. Ravindra Bhat, Justice Hima Kohli and Justice P.S. Narasimha began hearing the 20 petitions on the matter on April 18. 

The pleas were filed by various same-sex couples, transgender persons and LGBTQIA+ activists challenging the provisions of the Special Marriage Act 1954, Hindu Marriage Act 1955 and the Foreign Marriage Act 1969 to the extent that these legislations did not recognise non-heterosexual marriages.

The Apex Court, while hearing the matter a few days back, had observed that it will confine the issue only to the Special Marriage Act and will not touch personal laws. 

The Union of India, which was a party to the case, had initially challenged the maintainability of the petitions on the grounds that the issue fell in the legislative domain.

However later, it agreed to confer certain rights to the couples of same gender, which were short of legal recognition as marriage. 

The Apex Court had asked the Central government whether certain executive instructions could be issued to ensure that same-sex couples had access to welfare measures and social security such as granting them permission to open joint bank accounts and name their partner as nominee in life insurance policies, PF and pension.

The Constitution Bench had further asked the Union of India whether a declaration of right to marry for same-sex couples could be issued, without interfering with the existing statutes. 

The counsels for the petitioners had sought replacement of words ‘husband’ and ‘wife’ in the Special Marriage Act in a gender neutral manner as ‘spouse’ or ‘person’.

The Union government opposed the argument, stating that the Special Marriage Act was enacted with an altogether different purpose in mind and when the same was passed in 1954, the legislature never contemplated bringing homosexual couples under its ambit.

The Central government also said that such an interpretation would disrupt various other legislations which dealt with adoption, maintenance, surrogacy, succession and divorce.

The National Commission for the Protection of Child Rights has recently intervened in the matter, expressing concerns about allowing same-sex couples to adopt a child. 

The Delhi Commission for the Protection of Child Rights, on the other hand, supported the petitions and backed the right of same-sex couples to adopt.

The petitioners were represented by Senior Advocates Mukul Rohatgi, Dr Abhishek Manu Singhvi, Raju Ramachandran K.V. Vishwanathan, Dr. Menaka Guruswamy, Jayna Kothari, Saurabh Kirpal, Anand Grover and Geeta Luthra, along with Advocates Arundhati Katju, Vrinda Grover, Karuna Nundy and Manu Srinath. 

Solicitor General Tushar Mehta appeared for the Union government, while Senior Advocate Rakesh Dwivedi argued for the state of Madhya Pradesh, opposing the petitions. Senior Advocates Kapil Sibal and Arvind Datar also argued opposing the petitions.

The Union government on Tuesday told the Supreme Court that considering the complexity of the issue and the social ramifications regarding legal recognition for same-sex marriages, the issue should be left to the Parliament to decide.

The Supreme Court is currently hearing the 19 petitions seeking legal recognition of same sex marriages.

The Constitution Bench of Chief Justice of India D.Y. Chandrachud, Justice Sanjay Kishan Kaul, Justice S. Ravindra Bhat, Justice P.S. Narasimha and Justice Hima Kohli had started hearing the petitions on April 18.

Appearing for the Central government, Solicitor General Tushar Mehta said the real question in the matter was who would take a call on what constituted a valid marriage and between whom.

The SG said there were several ramifications not only on society, but unintended ramifications on other statutes as well, adding that various debates were required by the society, states and civil society groups. 

The top law officer said the Apex Court could still save the rest of the exercise, noting that 160 legal provisions spanning different statutes could not be reconciled if the prayers were allowed. 

He further urged the court to first send it to the Parliament or state legislatures. Stating that no one was sitting on a value judgment, he said there was no stigma attached and that the Parliament has accepted their right to choice, autonomy in terms of sexual preference and privacy in the form of intimate relationships.

The 2019 Transgenders Act conveyed the legislative policy by bringing within it not only transgenders, but various other communities. The question was whether the right to marry could be prayed for as a judicial order, he said.

As per the SG, the right to marry could not mean compelling the State to create a new definition of marriage as it was not an absolute right. 

He said mere declaration would not erase the question that if they had these rights, how those rights would be regulated and a variety of attendant problems that only the Parliament was able to take care of. 

The SG noted that the moment any right was recognised, it had to be regulated. Even today, there was no absolute right to marry for heterogeneous couples. 

The law provided for minimum age criteria, outlawed bigamy, prohibited marriage between certain relationships, and even the separation was regulated.

The law for heterogeneous couples also regulated when a person could get married, how many times he/she could marry, whom he/she could marry and how to legally separate from his/her spouse, he added.

The SG said several regulatory provisions followed legal recognition of a social relationship and only Parliament could conceive of several situations that may arise and regulate them. It was impossible for the court to conceive all possible scenarios.

He appealed to the top court of the country to rewrite an enactment to suit a situation. Stating that he was not opposing it, the SG asked who would do it. He further said that in his view, only the Parliament could do it. The Parliament could consciously omit this provision under the Special Marriage Act, he added.

He noted that the court could neither change the character of a law, nor it could override the legislative intent. Besides, the court would not read into a statute a term of larger amplitude. A person in place of a man or woman was of wider amplitude, he added.

SG Mehta said if the prayers were allowed, they would affect the heterogeneous couples. This court can’t use different lenses for different categories of persons under the same law. It would be impossible for this court to reconcile the situations. 

Below is the text of the hearing on Day 5 over same-sex marriages:

CJI DY Chadrachud: I wanted to appeal to all the members of the bar but now that you know, we are dealing with CBS. All my colleagues and I, we feel that there should be some cutoff beyond which- every morning we can’t have 600 MB files and huge papers being filed every morning. Even for the other side, it becomes very difficult for them to anticipate what they have to prepare. So we must have a cut off where the arguments starts. Then if something exceptional comes up then we will reflect. Basic material shouldn’t come everyday of the hearing.

Adv. Karuna Nundy: My lord I filed a 3 page note. We didn’t keep it to 1 page, although we could’ve have. The only reason that we didn’t is because we wanted to reproduce the paragraphs we were referring to rather than jump on them.

Hon’ble Chief Justice D.Y. Chadrachud: so what are the submissions – can you formulate your points-?

Adv. Karuna Nundy: yes my lord. My lord I seek a declaration that includes my rights as queer, non-heterosexual and same sex people to marry under the secular legislations, special marriage act, the foreign marriage act and provisions for OCI card holders under the citizenship act that constitute a self contained part to grant entitlement based on registration, recognition of foreign marriages. I will briefly go through what I will be covering and then go to the last point first. Number one – under the special marriage act it has been submitted that 99.9% of people fall in the gender binary and are men or women. Whether they are queer, trans or straight. We adopt the other arguments of Dr. Singhvi but on this point we differ. The 2011 census showed that there are at least 4.8 M and this is a huge underestimate of trans people in this country. Many of them are in this court room and I mention this because of the way that they have been demonized in the public. Ms. Muskan who has rendered excellent Assistance is one such person, who is going through such-

Hon’ble Chief Justice D.Y. Chadrachud: In first point you have referred to section 3 and 2(k). 3 speaks of non discrimination against non binary persons, that’s fair enough. The the next point in which you say – just explain that. You say that rule 5 of the transgender gender roles already recognizes marriage of trans persons. Can you read out the rule ?

Adv. Karuna Nundy: Rule 5 refers to the application of certificate of identity. Do my lords have it ?
My lady under these two rules (5 and 6) a certificate of identity is used for trans people. In that regard an affidavit is required to be submitted and the form of the affidavit is provided in the rules itself. So it’s the form I am on more than the rules. The rule is the power to issue the form and I’m on the form.

Hon’ble Chief Justice D.Y. Chadrachud: But you say that rule 5 already recognizes marriage of trans persons. Where do we get that from ? Because it’s an important point. Which page is the form ?

Adv. Karuna Nundy: Form is at 3224.
Form 2 says “I the form of affidavit to be submitted by a person applying for certificate of identity for transgender persons under rule 4 of transgender persons protection act, 2020 read with section 6 of transgender persons –

Hon’ble Chief Justice D.Y. Chadrachud: what’s important is I perceive myself as a transgender person who’s gender does not match with gender assigned at birth.

Adv. Karuna Nundy: yes my lord, I declare myself as transgender. But the top part say that I so and so, son / daughter / ward / spouse of –

Hon’ble Chief Justice D.Y. Chadrachud:
So person who is already in a marital relationship can therefore seek for a gender reassignment like-

Adv. Karuna Nundy: Or a self declared identification, precisely what is followed. Indeed as my lord Justice Bhat had said- there is no, some people may take a divorce pursuant to this and many people in our society will not. And there is no bar in this regard in the act.

Hon’ble Chief Justice D.Y. Chadrachud: So it already recognizes say a, pre existing marriage of a person who is trans.

Adv. Karuna Nundy: The pre existing marriage but also the subsisting marriage. Because when after they transition it continues to subsist.

Hon’ble Justice Ravindra Bhat: There is no bar in law.

Hon’ble Chief Justice D.Y. Chadrachud: Somebody who seeks to assert their identity as trans may well be in a marital relationship.

Adv. Karuna Nundy: But they also continue to be in that relationship. And that relationship under law is not annulled, dissolved or taken away from them.

Hon’ble Justice Ravindra Bhat: Law accommodates it because these are not ground for nullity or divorce by the other spouse. Because there are possibilities, various possibilities. There could be children, there are dependent families. So there’s a general acceptance. If someone has a problem, they seek out to an individual and to seek for something to be done.

Adv. Karuna Nundy: There is another mention of this. In form 6. And the illustrative list of documents on the next page includes a marriage certificate at item 12.

Hon’ble Ravindra Bhat: Form 2 will apply to married people to seek identity as transgender people. These forms accommodated such people. The rule makers have contemplated situations where people seek gender roles or rather regender themselves. They recognize and acknowledge that there could be pre existing marriages.

Hon’ble Justice Kishan Kaul: Is it your case that because the rules recognize the concept of pre existing marriage in such a scenario that itself amounts to permission to have a marriage afterwards. There is pre existing marriage which will continue and it may not dissolve as there may be a lot
Of ramifications which may arise when the marriage is nullified. Does that imply that after change suppose you are unmarried and there is a change, then you can marry. Is that what you’re trying to say ?

Adv. Karuna Nundy: That is precisely right. What I’m saying at this point is that state already recognizes through delegated legislations and the forms that have been issues under that delegated legislation, some trans marriages. And that some at the moment is restricted to marriages that were pre existing prior to my declaration of identity of transition biologically.

Hon’ble Justice Ravindra Bhat: The marriage recognition is marriage was solemnized when both parties were not trans.

Adv. Karuna Nundy: But is subsists because there is no bar in law.

Hon’ble Justice Ravindra Bhat: Let me complete, Perhaps there is no ground for divorce in marriage laws therefore there is a recognition of fact that once somebody finds something, we will not disturb it. Because disturbance might cause other consequences. So you recognize that situation. That is one thing to accommodate in form of rules or even forms. If we had to transform that into substantive provision and work backwards as it were there should be some statutory support for that because unless you state that. For instance section 3 or which ever provision says that there shall be no discrimination and then goes onto say in what aspects. So what are the rights and what are the obligations. What are the rights of the persons that seek for identity and what are the obligations of society, the legal obligation. If your arguments is on this, then you will have to go further.

Adv. Karuna Nundy: We have said for example that it has been said in this court, during these proceedings that trans and non binary people are elite, that small portion and etc my lords. The first point addresses that and the second point is on the non discrimination my lord.

CJI Chadrachud: Elite argument you can keep aside because now we are going to the constitutional issues and statutory issues. So elite is a matter of prejudice, it has no bearing on how we decide the matter. Actually these two forms which you showed us, the form 2 is at the stage when you apply for gender identity certificate. Form 6 is after gender re assignment takes place because if you see rule 7(4). Form 6 is supposed to be read with 7(4) because that’s in the title of form 6. And 7(4) says that district magistrate while issuing certificate of identity for change of gender shall simultaneously issue an identity card in form 6 to the applicant. That form in item 12 refers to marriage certificate. So these forms seems to indicate both when the person applies and issues reassignment, they do contemplate that somebody can be a party of a subsisting marriage.

(Case title: Supriyo alias Supriya Chakraborty and Anr vs Union of India)

A joint meeting was held between the Bar Council of India (BCI) and all the other states Bar councils in the country for passing a resolution related to the issue of same sex marriage.

BCI has resolved to request the Supreme Court of India for leaving the same-sex marriage issue for legislative consideration.

As per the resolution, India is a country with a many beliefs, and any matter that may challenge the fundamental social structure should necessarily come through the legislative process.

The meeting held passed a resolution opining that any decision by the Top court in such a sensitive matter may prove harmful for the future generation of the country.

The release stated. that India is one of the World’s most socio-religiously diverse countries which holds mosaic of beliefs. Hence, any matter which is likely to tinker with the fundamental social structure, a matter which has far reaching impact on our socio-cultural and religious beliefs should necessarily come through Legislative process only, the meeting unanimously opined.

The release states that the matter of same sex is very sensitive as it has been both commented and criticized by various sections of society, including socio-religious groups.

The release said that the issue at hand is highly-sensitive and criticized by various sections of society, including socio-religious groups, for being a social-experiment, engineered by a selected few. This, in addition to it, being socially and morally obsolete.

The resolution unanimously agreed that the same-sex marriage issue has a spectrum of stakeholders who belong to different socio-religious backgrounds and thus this should be dealt after having discussions with different social and religious groups by the competent legislature. 

It stated that law is essentially a codified societal norm that reflects the collective conscience of its people, and religion being intertwined with culture greatly influences the codification of law and societal norms in any civilized society.

The resolution highlighted that ever since the inception of human civilization marriage has always been accepted and categorized as a union of the biological man and woman with a twin purpose of procreation and recreation.

It further said that in such a background, it would be catastrophic to change something as fundamental as the conception of marriage by any Court, even if it is with the best of the intentions.

The resolution has thus requested the Supreme Court for appreciating and respecting the sentiments and mandate of the mass of the country and leave the issue of same-sex marriage for legislative consideration.

Islamic organisation Jamiat Ulama-i-Hind has filed a petition in the Supreme Court, opposing legal recognition for same-sex marriage in India.

Filed by its President and former MP Maulana Mahmood Madani, the petition sought intervention in the matter on the grounds that as a legal institution, marriage between the opposite sexes has been central to the legal regime of India.

The intervention application filed by the organisation argued that the concept of marriage was more than just the socio-legal recognition of a union of “any two persons” and that its recognition was on the basis of established societal norms, which cannot keep changing on the basis of variable notions based upon newly developed value system emerging from a different worldview. 

It stated that there were numerous statutory provisions in India regarding marriages between opposite sexes with related consequential legal provisions with various rights related to inheritance, succession, and tax liabilities stemming from marriage. 

The concept of marriage between two opposite sexes was the ‘basic’ feature of the concept of marriage itself, which led to the creation of a bundle of rights, it noted.

The application submitted that the petitions seeking recognition of same-sex marriages were diluting the concept of marriage, a stable institution, by introducing the free-floating system of same-sex marriage.

It said the countries legalising same-sex marriages have reached a certain threshold of social order in terms of education/literacy and societal acceptance, however, the concept could not be introduced in India. The plea added that most Eastern countries did not recognise same-sex marriages.

It further placed reliance on various religions to state that same-sex marriage cannot be permitted. 

As per the plea, the Hindus defined marriage as a religious sacrament in which a man and a woman were bound in a permanent relationship for physical, social and spiritual purposes of dharma, procreation and sexual advancement. This was one of the 16 sanskars.

Similarly, Christianity and Islam’s prohibition of homosexuality has been categorical from the beginning of these religions itself, noted the application.

It said a study of the Islamic paradigm qua gender and sexuality in Islamic law and theology reflected a clear and fixed principle of only two genders (biological), adding that epistemology of the Western sexual liberation movements showed the defining figures were nearly all staunch atheists. Since the atheistic worldview had a decisive influence qua the present alterations in the ideas of sexual morality, it must not be allowed to create any space within the religiously governed personal laws of communities, it said.

The Constitution Bench of the Apex Court would take up the petitions for hearing and final disposal regarding the legality of same-sex marriages on April 18.