The Supreme Court, on Monday, March 13, transferred the question of marriage equality for LGBTQIA+ persons to a Constitution Bench — which has five judges. The case has now been listed for April 18. A bench of justices headed by the Chief Justice of India (CJI) DY Chandrachud started hearing a batch of petitions demanding the right to marry for LGBTQIA+ persons, which was opposed by the Union government. The bench on Monday said that the petitioners have sought the right of marriage not only relying upon legal precedents, but also by asserting broader constitutional entitlements around the rights to life and dignity embodied in the preamble and Articles 14 (Equality before law), 19 (Protection of certain rights regarding freedom of speech, etc), and 21 (Protection of life and personal liberty) of the Constitution.
The Supreme Court had, on January 5 this year, clubbed and transferred to itself all petitions pending before different High Courts across the country on the issue of grant of legal recognition to same-sex marriages. The court had also asked the Union government to file a joint reply to all the petitions by February 15. The batch of petitions include those challenging certain sections of the Hindu Marriage Act (HMA), the Special Marriage Act (SMA), Foreign Marriage Act (FMA), and other marriage laws, as unconstitutional on the ground that they deny LGBTQIA+ persons the right to marry the person of their choice. The petition asks for the provisions to be read broadly so as to grant persons of all genders and sexual orientations the right to marry.
The Union government, in its counter affidavit filed before the Supreme Court, opposed the pleas stating that they were “wholly unsustainable, untenable, and misplaced.” Responding to 15 petitions, the Union government said that the definition of marriage, which is "socially, culturally, and legally ingrained into the very idea and concept of marriage should not be disturbed or diluted by judicial interpretation."
Senior Advocate Neeraj Kishan Kaul, appearing for the petitioners, contended that the Special Marriage Act uses the words “marriage between two persons,” and not ‘man’ or ‘woman’. Senior advocate Vishwanathan, appearing for a transgender person, said that the case was not only about transgender statute or the HMA, but about Article 19(1)(a) (freedom of speech and expression). “What is engaged here are Articles 21 and 19, where denial of the right to marry is a denial to the right to expression, dignity, which are all natural rights. The right of choosing a partner is the right of expression, right of dignity,” he said.
Appearing for the Union government, Solicitor General (SG) Tushar Mehta argued that while the right to love and the right to express was already upheld and was not interfered with, the court had – in Navtej Singh Johar and Others vs Union of India (struck down section 377) – not included the right to marry. He also argued that marriage was not just a contract under the HMA and Muslim laws. “The moment marriage as a recognised institution comes between the same sex, question will come on adoption,” he argued, adding that the Parliament will also have to look into other related issues like adoption and “examine the psychology of the child.” Chief Justice of India DY Chandracud responded with, “Adopted child of a gay or lesbian couple does not have to be gay or lesbian.” Noting that the government had filed a counter affidavit, the court directed the government to file any supplement, if required, within a period of three weeks.
One of the primary grounds on which the petitioners demand the right to marriage is that the existing acts violate Articles 14 (Equality before law), 15 (Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth), 19 (Protection of rights regarding freedom of speech, assembly, etc), 21 (Protection of life and personal liberty) and 25 (Freedom of conscience and free profession, practice, and propagation of religion) of the Constitution of India.
The petitioners state that excluding same sex couples from the right to a legally valid marriage is arbitrary and unreasonable, and recognising only the marriages that happen between heterosexual persons discriminates against people on the basis of their sexual orientation, and so violates articles 14 and 15. Further, stating that Article 21 guarantees adults the right to marry any person of their choice, the petitioners argue that depriving them of the choice on the basis of sex and gender is a violation of Article 21.
The petitioners also argue that discrimination against an individual because of sexual orientation is deeply offensive to the dignity and self-worth of the individual and failure in recognising same-sex marriages violates the freedom of conscience of same-sex couples, which is a fundamental right under Article 25 of the Constitution.
This case is considered an important milestone in the history of LGBTQIA+ community’s legal fight in India. In the Deepika Singh vs Central Administrative Tribunal judgement of 2022, the Supreme Court expanded on the traditional meaning of family, observing, "familial relationships may take the form of domestic, unmarried partnerships or queer relationships.” The court also noted that an ''atypical" manifestation of a family unit is as real as its traditional counterpart and deserves protection under the law. This observation was made by a bench comprising of Justices DY Chandrachud and AS Bopanna.
A 2019 judgement from the Madras High Court in Arun Kumar vs Inspector General of Registration, Tamil Nadu, had expanded the definition of ‘bride’ to include transgender women, stating that the term ‘bride’ in the Hindu Marriage Act “cannot have a static meaning.” The court also upheld that a marriage between a cis man and a trans woman is valid under the Hindu Marriage Act.
Navtej Singh Johar and Others vs Union of India (2018) is one of the most important judgements as it struck down section 377 of the Indian Penal Code that criminalised same sex intercourse between consenting adults, stating that it was unconstitutional. The verdict was pronounced by a bench comprising the then Chief Justice of India Dipak Misra, Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud, and Indu Malhotra. The judgement held that members of the LGBTQIA+ community are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution, and that the choice of whom to partner, the ability to find fulfilment in sexual intimacies, and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation.
In 2011, a Gurgaon court recognised a same-sex marriage and later offered protection to the couple when they faced threats. Another important case is the National Legal Services Authority of India (NALSA) vs Union of India judgement, widely known as the NALSA judgement. The apex court recognised that transgender and intersex persons also have the right to marry through this judgement. The court had also stated, among other things, that transgender persons have the right to self-identify their gender.