The Supreme Court on Tuesday delivered the much-awaited verdict on the legalisation 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 refused to grant legal recognition to same-sex couples.

The Apex Court further refused by 3:2 majority, the extension of right to adopt a child for same-sex couples.

While the majority Bench of Justice Kohli, Justice Bhat and Justice Narasimha denied the right to such couples, CJI Chandrachud and Justice Kaul ruled in that same-sex couples were entitled to recognise their relationships as civil union and could claim consequential benefits.

The minority bench further said that such couples had the right to adopt children and struck down adoption regulations to the extent it prevented the same.

As per the CJI, provisions of the Special Marriage Act could not be struck down or words could not be read into it to allow same-sex marriages.

Justice Kaul said the Special Marriage Act was discriminatory towards queer couples, but concurred with the CJI in holding that it cannot be interpreted to allow same-sex marriages.

The CJI, while noting that queerness was neither urban nor elite concept, said that there is no universal concept of marriage. Marriage has attained the status of a legal institution due to regulations.

He said the Constitution does not grant a fundamental right to marry and the institution cannot be elevated to the status of a fundamental right.

As per the CJI, the Court cannot strike down provisions of the Special Marriage Act. It is for Parliament to decide the legal validity of same-sex marriage. Courts must steer clear of policy matters.

He said freedom of queer community to enter into unions is guaranteed under the Constitution. Denial of their rights is a denial of fundamental rights. Right to enter into unions cannot be based on sexual orientation.

Transgender persons have the right to marry under existing law, he added.

He said queer couples have the right to jointly adopt a child. Regulation 5(3) of the Adoption Regulations as framed by the Central Adoption Resource Authority (CARA) is violative of Article 15 of the Constitution for discriminating against the queer community.

The CJI said the Centre, states, union territories shall not bar queer people from entering into unions to avail benefits of the state.

At the hearing on the legality of same-sex marriage, the Centre told the Supreme Court it would constitute a committee under the cabinet secretary to examine problems faced by same-sex couples. CJI DY Chandrachud said whatever concessions the Centre gives, the Court will deal with the constitutional decision.

The National Green Tribunal has directed the Ludhiana District Magistrate to disburse compensation of Rs 20 lakh each to the relatives of the deceased in the Ludhiana gas leak incident. An inquiry committee has been constituted and is to submit the report by June 30.

The Supreme Court rejected a petition to waive the death sentence of Balwant Singh Rajoana, the assassin of former Punjab CM Beant Singh. This leaves it to the Home Ministry to decide on Rajoana’s mercy petition, which has been pending for almost 10 years.

Former Delhi Deputy CM Manish Sisodia has sought interim bail in the Delhi High Court citing his wife’s ill-health. The HC has issued notice to the CBI.

In the case pertaining to the marriage equality case before the Supreme Court, petitioners have challenged the provisions of the Special Marriage Act 1954 that requires parties intending to marry for giving advance notice of 30 days, which will be published in the Registrar’s office inviting public objections.

The Petitioners have been seeking recognition for same-sex marriage as they challenge the provisions as violative of fundamental rights to privacy and decisional autonomy.

They added that the notice and objections expose couples who enter into non-traditional marriages to threats and violence from families and vigilante groups.

The Constitution Bench consisting Chief Justice of India DY Chandrachud, JusticeSanjay Kishan Kaul, Justice S Ravindra Bhat,Justive Hima Kohli and Justice PS Narasimha expressed agreement with the concerns raised by the petitioners.

 Dr Abhishek Manu Singhvi, who  appeared in the writ petition filed by Utkarsh Saxena and Ananya Kotia, said that couples opting to get married under as per the  Hindu Marriage Act or personal laws are not mandated to give advance notice to the public.

 The Special Marriage Act, which is a secular law, and is for the benefit of inter-faith couples, has such provisions.
He questioned that when no hetero sexual couple announces that they intend to marry then why should homo be subjected to it.
The petitioner said that It is his personal decisional autonomy. It’s the heart of his privacy to decide with whom he associate when, how, after how much time into matrimonial union- be it of the same sex or the opposite sex.

Justice Ravindra Bhat said that these provisions are based on patriarchy and were created when women didn’t have agency.

CJI DY Chandrachud stated that it is virtually laying them open to invasion by society..by Collectors, District Magistrates,Superintendent of Police.

Senior Advocate Raju Ramachandran, who appeared for lesbian couple Kajal and Bhawna, asked about the rationale behind these provisions of the Special Marriage Act.

He said that these provisions are indeed a relic of the British legislations which intended to prevent clandestine marriages and wondered how can they be placed in a protective legislation.

CJI Chandrachud said that these provisions deter the right to get married at a time when you desire to, it can’t be regarded as procedural because the impact is on your substantive right to get married at the time you choose.

CJI also observed that the provisions may not meet the test of proportionality, even if they are regarded as a measure to check if the couples are meeting the conditions of marriage, as there are other less restrictive means.

Ramachandran argued that this notice requirement amounts to requirement of giving a notice to exercise my fundamental rights. This 30 day notice is designed for parental bodies and other busy bodies to create roadblocks.

CJI opined that there is a very real likelihood that this will disproportionately affect situations in which one of the spouses either belongs to a marginalized community. This has a disproportionate impact on most vulnerable of society.

Ramachandran asserted that this would be equally true for heterosexual couples too”, Justice Hima Kohli weighed in.

In 2021, the Allahabad High Court had declared that these provisions of the Special Marriage Act are not mandatory as the mandate for advance notice violate right to privacy.

Chief Justice of India D.Y. Chandrachud on Thursday told the 19 petitioners seeking egal recognition to same-sex marriage to finish the arguments today only, stating that it will hear the petitions seeking legal recognition of same–sex marriages in the same way as it heard the Ayodhya land dispute case, taking it up on Monday and Friday also.

The Constitution Bench of the Supreme Court comprising the CJI, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat, Justice P.S. Narasimha and Justice Hima Kohli commenced hearing on the petitions pertaining to marriage equality rights for LGBTQAI+ community.on April 18 and were set to hear the same in the coming week also.

The CJI said in the coming week, the Apex Court will hear the case on Monday, Tuesday, Wednesday and Thursday. This Court will hear it without a break, he noted, adding that the top court of the country heard the Ayodhya case on Mondays and Fridays also.

Normally, the Constitution Bench does not sit on Mondays and Fridays.

The CJI told the petitioners that during lunch time, they should sit together and make points, so as to complete the arguments today.

After a lawyer representing one of the petitioners sought more time for arguments, the CJI said three days were enough. The Supreme Court needs to hear the other side (Central government) in detail, he added.

Justice Kaul said that they were only dealing with one aspect (If Special Marriage Act can be interpreted to allow same sex marriage). He asked the petitioners not to widen the ambit.

The CJI then observed that this was the reason why some of the earlier CJIs could not constitute a Constitution Bench. Five judges had to leave their regular work, he added.

When the matter was called out, Arundhati Katju said that she had submitted the list sequence of the Counsels appearing on behalf of the petitioners, along with their required time. At this juncture, the Bench indicated that the petitioners should conclude their side of arguments by today itself. 

Dr. Singhvi submitted that the ultimate guiding star for the present batch of matters was the intention of statute, which was to provide the institution of marriage to all, irrespective of religious belief and permission. He further submitted that while enacting the statute, the Parliament could not have thought about homosexuals, but the society has evolved since. 

He said the institution of marriage was very important and in order to provide a stable relationship, a same-sex couple should also be granted the same right of marriage. It was imperative to expand the scope of framework in order to assimilate this evolution, he added. 

The Senior lawyer submitted that various provisions of the Special Marriage Act could be interpreted in a matter which recognised the same-sex couples.

Terming the 30-day notice and objection regime of the Special Marriage Act as unconstitutional, he said that such a regime was only peculiar to the Special Marriage Act, 1954 and directly struck at the right to privacy, autonomy and choice of the couple. He further submitted that this provision rather invited violence and was in contravention with the purpose of the Act. 

Senior Advocate Ramchandran, appearing on behalf of the petitioners, namely Kajal (a Dalit woman, employed at a bakery) and her partner – Bhavana (belonging to OBC, from Bahadurgarh, working as an accountant), submitted that the issue at hand was not limited to the concerns of the urban elite as alleged. 

He argued that marriage was not just a gateway to socio-economic privileges but also sometimes a societal protection from one’s own parental families. He submitted that couples such as the petitioners he represented did not have enlightened parents and thus, they have had to move to the Delhi High Court for protection orders. 

In light of this, the notice and objection scheme contemplated under the Special Marriage Act needs to be done away with, he prayed, adding that a protocol be put in place on the lines of the one set out in the judgment of Shakti Vahini granting protection from the Khaap Panchayat.

He argued that a “separate but equal” argument that the Union has sought to put forward could not be countenanced. 

The Senior Counsel submitted that the Union, in its counter-affidavit, had stressed the importance of procreation, arguing that as people in a same sex marriage cannot procreate, they need not be granted the right to marry. In response, he submitted that even many heterosexual females above the age 45 years may not be able to safely become pregnant, but were still allowed to marry. Therefore, procreation could not be a ground to deny the right to marry. 

With respect to the Transgender Act, Vishwanathan showed a chart prepared by him depicting the types of combination of relationships that can be entered into and how they can be brought within the purview of the Special Marriage Act. 

The arguments for the petitioners were led by Senior Advocate Mukul Rohatgi, assisted by Senior Advocates Saurabh Kirpal and Dr. Maneka Guruswamy, along with Advocate Arundhati Katju and a team of Advocates from Karanjawala & Co. 

Solicitor General Tushar Mehta and Additional Solicitor General Aishwarya Bhati appeared on behalf of the Union government. 

Senior Advocates Geeta Luthra, Anand Grover and Jayna Kothari represented other petitioners, who were still to argue.

Full text of Day 3 on petitions seeking legal recognition of same-sex marriages

Respondent 1 : I’ve prepared this for your lordships convenience as per the seniority after discussing with the counsel on this side. This is as per seniority my lord and I’ve not – as I’ve mentioned that the bottom this does not include the interveners along with the indicative time per counsel.

Petitioner 1 : My lords my – just wanted to make one mention my lord –

CJI D.Y. Chadrachud : Today – one second. We will, after Dr. Singhvi is done, we will hear Mr. Vibhishan. But on this side, on this side we have to complete the arguments today. We wrap up the arguments of this side today. No question of going beyond today. We have now heard two learned senior counsels who have taken us through everything. Maybe a third learned counsel this side would also be arguing. Everyone else may now – lunch –

Petitioner 1 : My lord I’ve just asked for twenty minutes.

CJI D.Y. Chandrachud : At lunch – No – At lunch – one second. At lunch all of you please sit down and ration the time this way that by four ‘o’ clock this side is complete. No further, then we have to give the other side enough time. So –

Petitioner 2 : May I submit one aspect – 

CJI D.Y. Chadrachud : Now, one second. If I’m having a long telephonic conversation my better half only does this to me, which is please now get on with your work and get on with your work and start the conversation. So I’ll just say, on the mentioning – no as in no more mentioning. Dr. Singhvi please argue. 

Respondent 1 : I’m obliged 

Respondent 2 : Only one aspect my lord regarding an intervention petition my lord. May I submit with your lordships indulgence, one aspect regarding the intervention application. I’ve moved an intervention application, I’m only seeking my lord – 

CJI D.Y. Chadrachud : There will be 150 interveners. Please don’t mention because you’ve have everyone on the intervention now. 

Respondent 2 : Because the theoretical aspects my lord – 

Petitioner 2 : If we are not on other acts heard in just a little bit of fullness. My lord if one extra day perhaps could be given 

CJI D.Y. Chadrachud : NO No. Therefore, absolutely, we you know – there are Supreme Courts where the entire arguments could have been over in 30 mins, we have now given three days in this court. I think that’s good enough. 

Justice Kishan Kaul : We had indicated from the beginning that we are focusing on one issue and we are going to deal with it. Therefore, the requirement of other interventions, other periods, the nuances are not something we are looking into. So, you know just expanding it again is contrary to what we are constricted to. If everybody, if there are nine people and nine people want to argue for two hours what’s the point of taking up a matter. 

Petitioner 2 : because no we’re only seeking a short time. 

CJI D.Y. Chadrachud : Just one second.

All the Justices begin to discuss something (microphones off)

CJI D.Y. Chadrachud : Dr. Singhvi. We will request Dr. Singhvi to conclude his arguments in 45 mins by 12:50 and between Mr. Ramchandran and Mr. Vishwanathan we will give you an hour and fifteen minutes. 

CJI D.Y. Chadrachud : You know, at the end of it you have to otherwise – What we were thinking was next week, we will sit on Monday, Tuesday, Wednesday and Thursday. So we’ll take it as we did on the case of Ayodhya. We were- there was no miscellaneous. We were working through the week. So we must give them also time. 

Respondent : But everybody should get some time. 

CJI D.Y. Chadrachud : But then you can merrily go in July, we have no problem because all of us are traveling in the vacation. We’ll take it in July, there’s no difficulty. We’ll give you as much time – 

Petitioner 2 : We may be accommodated my lord, just on Monday we will be – 

CJI D.Y. Chadrachud : I’ll tell you why because after next week. This bench, Justice Kaul is travelling. My lord is not available after next week for a week. We have no problem, We’ll keep it in July. 

Petitioner 2 : My lord Monday just Monday my lord, pro rata time can be divided. The times that we have specified. The time that subject to Mr. Ramchandran and Mr. Vishwanathan’s agreement to this 1.5 hours. The rest of us will divide it pro rata and we will finish on Monday my lord.

CJI D.Y. Chandrachud : We have no problem, let everyone go merrily. 

Petitioner 3 : It follows that the homosexual couple who’s marriage-like in the same way that an unmarried heterosexual couple is marriage-like are indeed an analogous situation. Any difference in treatment is based on sexual orientation. It requires an objective justification if it is to comply with article 14. Whatever the scope for discretion area of judgment on these cases maybe. It can be transplanted subject to my lord discretion to the Indian Supreme Court. Whatever the scope for a discretion area has been in these cases may be there has to be a legitimate aim before difference of treatment can be justified. But what could be the legitimate aim of singling out, heterosexual couples for more favourable treatment than homosexual couples. It cannot be the protection of the traditional family. 

A traditional family is not protected by granting people rights that they are denied who cannot or will not become a traditional family.  What is really meant by protection of the traditional family is the encouragement of people to form traditional families and discouragement of people to form others. There are many reasons why it might be legitimate to encourage people to marry, and to discourage them from living together without marrying. These reasons might have justified the act in stopping short at marriage. Once it went beyond marriage to unmarried relationships the aim would’ve to encourage one sort of marriage and discourage the other. The act does distinguish between unmarried, but marriage-like relationships, and more transient liaisons. It is easy to see how that might pursue a legitimate aim and easy to see how it might justify singling out the Survivor for preferential succession rights. But as Lord Justice Buxton said it is difficult to see how heterosexual will be encouraged to form and maintain such marriage-like relationships by the knowledge that the equivalent benefit is being denied to homosexuals. 

The distinction between heterosexual and homosexual couples might be aimed at discouraging homosexual relationships generally. But that cannot now be regarded as a legitimate aim. It is inconsistent with the right to respect for private life accorded to everyone, including homosexuals by article 8 since the Dudgeon case in 1981. 

If it is not legitimate to discourage homosexual relationships, it cannot be legitimate to discourage stable, committed marriage, like homosexual relationships of the sort, which qualify the survivor to succeed to the home. Society wants its intimate relationships particularly but not only if there are children involved to be stable, responsible and secure. It is the transient, irresponsible and insecure relationships, which causes so much concern. I have used the term marriage-like to describe the sort of relationship, which meets the statutory test of living together as husband and wife. Once upon a time it might’ve been difficult to apply those words to same-sex relationships because both in law and in reality the roles of the husband and the wife were so different and those differences were defined by two genders that is no longer the case the law now differentiates between husband and wife, in only very few unimportant respects. Husband and wife decide for themselves as to who will go out to work and who will do the homework and child care. Mostly each does some of each. Roles are interchangeable there is thus, no difficulty in applying marriage like to same sex relationships with the greatest respect.  

Justice D.Y. Chandrachud : Dr. Singhvi  so the case where the act squarely applied to unmarried relationships. The principle was that if you’re unmarried, the act applied to unmarried relationships between heterosexuals. There is no basis to exclude unmarried relationships among homosexuals.  

Petitioner 3 : It is the second last formulation of the sentence, which I’m concerned about. That when you have a particular paradigm applying to a heterosexual group your lordship there was absent, something very special. Will find it discriminatory to – 

Justice D.Y. Chandrachud : It says marriage-like relationships. So these are not marital relationships but marriage-like relationships of heterosexual couples who are in a stable relationship but who aren’t married. They said that therefore, if you are extending protection to heterosexual couples who are in a marriage-like relationship and therefore, not married. There is no basis to deny it to homosexual couples who are in a marriage-like relationship but who are not married. 

Petitioner 3 : I’m grateful to my lord, that’s one. But the language of the paragraph that I’ve read yesterday and today are very – and your lordship is not bound by these judgements. Your lordship will fight persuasive value to the extent your lordship finds. 

(Hands over another document and reads from it) 

The key question for the courts that are applying such direction is “how to determine when it is or it is not possible to ascribe a rights consistent meaning to the rights legislation?” Although a definitive answer to that question is proved unsurprisingly illusive, its shared assumption to date has been that the line that has been drawn between interpretation on one hand and Legislation on the other. The task assumed by the courts is to search for an interpretation relevant statutory provision that will bring it into conformity with human rights standards. 

Beyond the margins of the interpretation however, lies the constitutionally impermissible territory of judicial legislation. That my lordship is an equation. Given this characterisation as essentially interpretive, it is perhaps unsurprising that in my lord, I’ll skip the New Zealand specific para. In the United Kingdom, however, a new model now seems to be emerging. In a series of cases culminating in the decision of the house of lordships, the United Kingdom courts have cast doubt over the centrality of statutory language to the determination of whether the rights compatible reading of legislation is possible in the right of the human rights treaty. 

The text is not the law lords have said, determinative. Rather the courts will be constrained only by the underlying thrust of legislation A and the limits of their institutional capacity.  This paper discusses Ghaidan and its implications and suggests a remarkable aspect of Ghaidan is that it simultaneously divorces the process of statutory interpretation under HRA from the twin anchors of parliamentary intention and statutory text. In that light it is suggested that the dichotomy between the interpretation and judicial legislation is at the very least under pressure and the courts are in fact appropriating to themselves is significant if nevertheless a subsidiary slice of legislative power. Of the four law lords of the majority the names are given, all but the last delivered a separate opinion of the correct methodology under 3(1). There was however, substantial agreement in this essential principle. Lordships identified the key issue under 3(1) is “how to determine what is possible?” The scheme of 3 and 4 of the treaty envisages that there is a rubicon which the courts may not cross. What is not spelled out is the test that is applied to separate the ships from the goats. Parliamentary intention is not the touch-note. In investigating the line between the possible and the impossible, it was held that the courts was not constrained by the intentions of the Parliament that enacted the legislation. Lord Nickels distinguished the required approach in this respect with the orthodox approach to standard statutory interpretation. Which involves seeking the intention, reasonably to be attributed to Parliament in using the language in question in contrast, section 3 may require departure from the parliamentary intention. The key question being “How far and in what circumstances?” This is because there is another and a counter veiling parliamentary intention which needs to be given full weight. The intention reasonably to be attributed to parliament in enacting 3. So it is an objective test being brought in. Not determinative is statutory text. And it is quite interesting and astonishing though now In a constitutional context, American- English courts are saying this. Earlier it was sac-rage to suggest it to an English court. Remarkably their lordships held that the language of the statutory provision and issue is not the touch note in deciding, which it is not possible under 3(1). This holding had a number of dimensions, further their lordships expressed concern about excessive concentration in a literal or technical way on the linguistic feature of the statue. Rather section 3 requires a broad approach concentrating among other things in a purposive way on the importance of the fundamental rights involved. So intention one way, statutory text one way, now you’ve got third one, test, important fundamental right involved. Secondly their lordships expressed  that the proposition that the ambiguity in the statutory language is not a pre-requisite to the operation of 3(1). Thirdly, 3(1) might thus have a role even if the statutory language is not capable of bearing two meanings. Lord Nickels says once it is accepted a three way require legislation to bear a meaning which departs from the ambiguous meaning. The legislation will otherwise bear, it becomes impossible to suppose that parliament intended that the operation of 3 should depend critically on the form of which words adopted by the parliamentary drafts when the statutory provision and the consideration. That would make the application of 3 something of a semantic lottery. From this the conclusion which seems inescapable is that the mere fact that the language and the consideration is inconsistent with the convention compliant meaning. Does not of itself make a convention compliant interpretation under 3, impossible. So your lordships ultimate guide star intention – no,  text – no and parliamentary overall purpose – no but the ability to achieve a convention compliant result. Fourthly, their lordships considered that 3(1) empowers the court, in necessity to change the meaning of the legislation. 3 enables language to be interpretative, restrictively, or expansively, but if 3 goes further than this. It also have to require the court to rename words which change the meaning of the enacted legislation so as to make it convention compliant. In other words, the intention of parliament in enacting 3  was that to an extent bounded, only by what is possible. A court can modify the meaning and enhance the effect of both primary and secondary legislation. The lordship’s view is not the touch note in determining whether a convention compliant reading of the legislation is possible begs the question. If not the words then what? How then is one to sort the sheep from the goats ? Their lordships identified two overlapping limits. What is possible under 3(1)? General thrust of the legislation. Second is the court’s institutional capacity, which is defined later on. As to the first lordship held, 3(1) does not authorise the court to adopt meaning that is inconsistent to what they variously described as a fundamental feature of legislation. underlying thrust  of legislation. Grain of legislation. A cardinal principle of legislation is very core essence. It is a kind of a basic feature intra-legislation. This notion that the court cannot turn the scheme of the legislation inside out, overlaps with the second point. Which is, courts cannot make decisions for which they aren’t institutionally equipped. Some cases that lordships held call out for legislative deliberation. So in case where the lordships find the whole script has to be written, it has to go to the legislation. This might be the case for example, if the exercise of making the legislation convention compliant would involve the substitution of a detailed statutory scheme.

Chief Justice of India D.Y. Chandrachud on Wednesday refused to term same-sex marriage as an urban elitist concept, stating that though it could be considered somewhat urban because more people were coming out of the closet in such areas, however, there was no data available with the Government to corroborate the same.

These observations were made by the CJI, while hearing a bunch of petitions seeking legal recognition of same-sex marriages in India, arguing that the right to marry a person of one’s choice should be extended to the LGBTQIA+ community as well.

The Constitution Bench of the Supreme Court, comprising the CJI, Justice Sanjay Kishan Kaul, Justice S. Ravindra Bhat, Justice P.S. Narasimha and Justice Hima Kohli, had commenced hearing the pleas on April 18.

On Day 2 of the hearing, the CJI noted that a State could not discriminate against an individual on the basis of a characteristic over which the individual did not have any control. He further said that while considering it as an innate characteristic, it countered the argument of being an urban elitist concept. 

CJI Chandrachud expressed these opinions after the Central government argued that the petitioners seeking recognition of same-sex marriages represented urban elitist views.

In its latest affidavit on the matter, the Union of India, while opposing the petitions, claimed that the petitions represented mere urban elitist views for the purpose of social acceptance and that the legislature would have to consider broader views of all sections in the society.

It said living together as partners and having sexual relationship with same sex individuals was not comparable to the Indian family unit concept, which involved a biological man and a biological woman with children born out of such wedlock.

Earlier, the Union government had filed an application, urging the Apex Court to first decide on the maintainability of these petitions.

The hearing began on Tuesday on a heated note with the government saying that it will re-examine whether to participate in the proceedings or not.

Islamic religious body Jamiat-Ulama-I-Hind has filed an intervening application opposing the petitions on the grounds that notions like same sex marriage originated from Western culture, which had radical atheistic worldviews and the same should not be imposed in India.

The demand by same-sex couples to have adoption rights was also opposed by the National Commission for Protection of Child Rights (NCPCR), which mentioned a study stating that a child having such parents may get affected both socially and psychologically.

However, support came from the Delhi Commission for Protection of Child Rights (DCPCR), which said that adoption and succession rights must be conferred on same-sex couples.

The Central government again opposed the petitions filed in the Supreme Court seeking legal recognition for same-sex marriage in India by way of a second counter affidavit.

Terming marriage as an ‘exclusively heterogenous institution,’ the Union of India contended that those seeking marriage equality in India merely represented ‘urban elitist views’ for the purpose of ‘social acceptance’. 

It said the popular will of the people was that marriage be recognised solely amongst heterosexual individuals.

Seeking the dismissal of petitions on the grounds of maintainability, the Union government argued that marriage was a socio-legal institution which can be created, recognized, conferred with legal sanctity, and regulated only by the competent legislature by way of an Act under Article 246 of the Constitution. 

The Union government further argued that even though India was a country of several divergent religions, castes, sub-castes and schools of religions, all personal laws and customs recognised marriage solely amongst heterosexual persons. 

It said the institution of marriage was necessarily a social concept. The sanctity to the said institution was attached under the respective governing laws and customs, as it was given sanctity by law on the basis of social acceptance. 

The plea further said that social acceptance and adherence to societal ethos, cherished values in the concept of family and shared beliefs across religions, in case of recognition of socio-legal institutions of marriage, could not be confused with majoritarianism.

It noted that the petitions seeking legalisation of same-sex marriages merely reflected ‘urban elitist’ views, which could not be compared with the appropriate legislature that reflected the views and voices of a ‘far wider’ spectrum expanding across the country.

The Union government said that excluding same-sex marriages from the institution of marriage was not discriminatory because the conventional and universally accepted socio-legal relationships like marriages across all religions, were deeply rooted in the Indian social context and indeed were considered a sacrament in all branches of Hindu law. 

It said even Islam considered it as a sacred contract and had asserted that a marriage could only be considered valid between a biological male and a biological female. 

This deep-rooted social context was also imbibed in the Special Marriage Act, 1954, which reflected a clear legislative policy of marriage between a biological man and a biological woman and recognised the elements of personal laws and customs, it pointed out.

Noting that giving parity to same-sex marriages would amount to comparing two non-comparable classes, the petition argued that the creation or recognition of a new social institution altogether cannot be claimed as a matter of right/choice, much less a fundamental right. 

The counter-affidavit also noted that marriage has never been confined to a private sphere. It said the regulation of a marriage was very much an issue of acceptance by the society and as such ought to be debated only by the competent legislature, being a body, which was the repository of democratic representation and reflected the will of the people. 

It said this rationale was the very basis for the recognition of a marriage across jurisdictions by the State. Marriage was the condition precedent for the State’s very existence. Taking note of the laws on the subject, the Central government contended that they made clear that the legislative intent was to recognise marriage as being the union of one man and one woman only.

On April 16, the Apex Court declared the composition of the five-judge Constitution Bench, which would hear the bunch of petitions seeking legal recognition for same-sex marriage from April 18.

The Bench will comprise Chief Justice of India D.Y. Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli and Justice P.S. Narasimha.

A bunch of petitions were filed in the Supreme Court challenging the provisions of the Hindu Marriage Act, the Foreign Marriage Act and the Special Marriage Act to the extent that they did not recognise same-sex marriages.

The Supreme Court on Saturday declared the composition of the 5-judge Constitution Bench that will hear the batch of petitions seeking legal recognition for same-sex marriage.

The Bench will comprise Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli and Justice PS Narasimha.

The Apex Court will start hearing the cases from April 18.

Earlier on March 13, a three judge of CJI DY Chandrachud, Justice PS Narasimha and Justice JB Pardiwala had referred the petitions to a Constitution Bench.

The petitions challenged the provisions of the Hindu Marriage Act, the Foreign Marriage Act and the Special Marriage Act to the extent that they did not recognise same-sex marriages.

Earlier this month, Islamic organisation Jamiat Ulama-i-Hind had 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 the country.

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 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.

On January 6, 2023, the Apex Court had transferred to itself, all petitions pending before the High Courts of Delhi, Kerala and Gujarat, seeking extension of the right to marry for the members of the LGBTQIA+ community.

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.

By Vikram Kilpady

Almost five years after the Navtej Singh Johar vs Union of India verdict of the Supreme Court decriminalizing consensual same-sex relationships in September 2018, the next step for homosexual couples seems to be heading for the final countdown over the legal recognition of same-sex marriages.

The Supreme Court recently transferred a batch of 15 petitions to a five-judge Constitution bench to hear the case from April 18. The petitions range from seeking changes to provisions of the Special Marriage Act, the Hindu Marriage Act and the Foreign Marriage Act to enable same-sex couples get over the gender barrier stipulated in the laws. Some petitions also seek changes to the Citizenship Act to allow foreign partners in a same-sex marriage to be recognised as spouses for availing of Overseas Citizenship of India. Some petitions have prayed for the right to marry a person of one’s choice to be extended to LGBTQIA+ persons as well.

Chief Justice of India DY Chandrachud referred the petitions to the Constitution bench under Article 145 (3) of the Constitution, which decrees that a bench of minimum five judges need to sit to decide a case involving a “substantial question of law as to the interpretation of the Constitution”.

The bench, which also comprised Justice PS Narasimha and Justice JB Pardiwala, noted the petitioners have asserted broader entitlements, including the right to life, the right to dignity in the Constitution, the Preamble and issues pertaining to Articles 14, 19 and 21.

The reference to the Constitution bench also meets another demand for live screening of proceedings of hearings on the same-sex marriage recognition issue, since Constitution bench proceedings are already being live telecast, a point noted by Senior Advocate Neeraj Kishan Kaul, who appeared for one of the petitioners.

With the petitions pushing for such a large scale overhaul of laws, the Union of India argued that such changes should come via Parliament and not the courts. In its counter-affidavit, the Union maintained that a marriage can only be between a biological man and a biological woman. “It is submitted that codified and uncodified personal laws take care of all branches of every religion like Mitakshara, Dayabhaga etc in Hindus and similar differences in other religions. Depending upon the personal laws applicable, the nature of marriage as an institution is different. Amongst Hindus, it is a sacrament, a holy union for performance of reciprocal duties between a man and a woman. In Muslims, it is a contract but again is envisaged only between a biological man and a biological woman. It will, therefore, not be permissible to pray for a writ of this Hon’ble Court to change the entire legislative policy of the country deeply embedded in religious and societal norms.”

Referring to the Navtej Singh Johar judgment, the Union argued that despite decriminalization of Section 377 IPC, the petitioners cannot claim a fundamental right for same-sex marriage to be recognized. “While it is certainly true that all citizens have a right to association under Article 19, there is no concomitant right that such associations must necessarily be granted legal recognition by the State. Nor can the right to life and liberty under Article 21 be read to include within it any implicit approval of same-sex marriage.”

It said the same has been clarified by the Supreme Court order in the same judgment’s Para 167: “…When we say union, we do not mean the union of marriage, though marriage is a union. As a concept, union also means companionship in every sense of the word, be it physical, mental, sexual or emotional.”  The petitioners’ counsels piped in to say that reading was incorrect.

Solicitor General (SG) Tushar Mehta underlined the Union is not contesting the right to love and the right to express which had already been upheld in the Navtej Johar judgment nor does it seek to interfere with it. He again submitted that the Court then had said expressly and carefully that the right to love need not mean the right to marry.

Apart from the “a sacrament, a holy union, a sanskar” angle, the centre’s affidavit said: “Parties entering into marriage create an institution having its own public significance as it is a social institution from which several rights and liabilities flow. Seeking declaration for solemnisation/registration of marriage has more ramifications than simple legal recognition. Family issues are far beyond mere recognition and registration of marriage between persons belonging to the same gender.”

Appearing for one of the petitioners, Senior Advocate Abhishek Manu Singhvi said the laws have to be read in such a way that terms such as man, woman are done away with. He added the right to marry should not be denied to a group of persons purely based on their sexual orientation.

The SG said Parliament will have to see the psychology of a child who has not been reared by a father and a mother and will have to debate and take a call in view of societal, cultural ethos. CJI Chandrachud then clarified that the adopted children of a lesbian or a gay couple need not necessarily be lesbian or gay.

Imploring the Supreme Court, the SG said the Court will be taking upon itself a grave responsibility which will decide how society will develop in the future and its ramifications.

Predictably, the Rashtriya Swayam­sevak Sangh has supported the Union’s stance. Speaking to the media after the RSS Akhil Bharatiya Pratinidhi Sabha, its general secretary Dattatreya Hosabale said: “Marriage is supposed to be between two opposite genders. It’s not a contract or an instrument of enjoyment.”

Hosabale said marriage should only be between a man and woman, but added that any two people are welcome to stay together. On the cultural aspect, he said: “In the Hindu way of life, marriage is part of our culture, and it has been going on for thousands of years. Two individuals live together, not for themselves, but to start a family. It is for the betterment of society, and for the betterment of their own region. It is not for personal, physical or sexual enjoyment.”

Data from the Human Rights Campaign (HRC) Foundation, which tracks developments in the legal recognition of same-sex marriages around the world, shows 32 countries have already legalized same-sex marriages. These are Argentina, Australia, Austria, Belgium, Brazil, Canada, Chile, Colombia, Costa Rica, Denmark, Ecuador, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Mexico, the Nether­lands, New Zealand, Norway, Portugal, Slovenia, South Africa, Spain, Sweden, Switzerland, Taiwan, the United Kingdom, the United States of America and Uruguay (see map). Of these, Taiwan is the only Asian country where a same-sex union is legally recognized.

Switzerland, Ireland and Australia legalized same-sex marriages by legislation after country-wide referendums. Ten countries legalized same-sex marriages after court verdicts, these include the United States of America, Austria, Colombia, Ecuador, Mexico, Costa Rica, South Africa and Taiwan. Slovenia passed legislation legally recognizing same-sex marriages after a court order. Further, South Africa and Taiwan passed legislations after courts in their respective countries mandated the legislature to pass laws within a deadline, says the HRC website.

The US Supreme Court in June 2015 legalized same-sex marriage all over the country barring American Samoa and other sovereign tribal nations. The ruling invalidated constitutions in 29 states that ban same-sex marriage and statutes in 31 states barring same-sex marriage. Nevada became the first state to repeal its ban on same-sex marriages, but five years later in 2020. Further, only 18 of the 50 US states have legalized same-sex marriages hence, the notable exception among them being California.

In its affidavit before the Supreme Court of India, the Union also sought to downplay the reliance on judgments of US Courts referred to in the petitions by quoting two Supreme Court judgments of 1965 and 1973 that noted caution before literal application of such verdicts. Though the prospects of a closure look imminent, there are challenges ahead which can skew the debate in the popular imagination at least.

With only the heterosexual blindfold in its defence and the purported effects on society and culture, the Union of India’s thrust in its counter-affidavit has been that granting legal status to same-sex marriages will need revisiting a slew of laws dealing with adoption, divorce, maintenance/alimony, spousal cruelty, adultery, property inheritance and more.

Advocates for marriage equality and a progressive society will have their arguments for modifying the laws around the institution of marriage to make room for same-sex unions. The government’s view has been that it will be dismantling a civilisational and cultural construct.

The Constitution bench, which will hear the case, will be aware of the far-reaching impact its verdict will have. It will be telecast on YouTube. Mark the date and follow the proceedings to find out if modernity will be able to pull off a victory over ancient biases and stigma in the era of individual preferences. 

—The writer is Editor, IndiaLegalLive.com and APNLive.com

As the Supreme Court heard petitions related to same-sex marriages, a Right-wing group protested against the same outside the Apex Court premises.

Stating that Homosexuality was against the culture of the country, the group called United Hindu Front urged the top court of the country not to hear the petitions.

The protest was led by President of the organisation, Jai Bhagwan Goel.

The Bench of Chief Justice of India (CJI) D.Y. Chandrachud and Justice P.S. Narasimha issued notice to the Central government on the matter and directed it to file response by February 15.

The top court of the country today transferred all petitions pending before High Courts on the matter to itself.

The Apex Court fixed March 13 as the next date of hearing.

The bench has also appointed Advocate Arundhati Katju on behalf of petitioners and Advocate Kanu Agarwal on behalf of the Union government as Nodal Counsels.