Plea for Marriage Equality: Constitution Bench Day #2

Plea for Marriage Equality

The 5-Judge Constitution Bench led by CJI Chandrachud resumed hearing the batch of petitions seeking the legal recognition of same-sex and other queer marriages in India. 

Yesterday, the SC decided to restrict the scope of arguments to the Special Marriage Act, 1954, following concerns over the impact of the case on other personal laws. 



On November 14th, 2022, two same-sex couples filed writ petitions in the Supreme Court seeking legal recognition of same-sex marriages in India. The petitions were centred around the constitutionality of the Special Marriage Act, 1954 (the Act).

The petitioners argued that Section 4(c) of the Act only recognises marriage between ‘male’ and a ‘female’ persons. This discriminates against same-sex and other queer couples by denying them the same matrimonial benefits as heterosexual couples.

According to petitioners, the non-recognition of same-sex marriage violates the rights to equalityfreedom of expression and dignity. They claimed that the SC’s judgements in NALSA vs Union of India (2014) and Navtej Singh Johar vs. Union of India (2018) recognised non-binary gender identities and guaranteed equal rights to homosexual persons. However, since no law regulates queer marriages, queer couples are denied the practical benefits that flow out of marriage such as inheritance, insurance, adoption, etc.

On March 12th, 2023, the Union filed a Counter Affidavit opposing same-sex marriages. They claimed that ‘the notion of marriage itself necessarily and inevitably presupposes a union between two persons of the opposite sex’.

On March 13th, 2023, a 3-Judge Bench led by CJI D.Y. Chandrachud referred the case to be heard by a 5-Judge Constitution Bench as it involved constitutional as well as statutory questions of law.

Sr. Adv. and former AG Mukul Rohatgi began today’s arguments by objecting to SG Tushar Mehta plea to include all the States in the proceedings. Mr. Mehta claimed yesterday that States must also be issued notice as marriage falls under the Concurrent List of the Constitution. Mr. Rohatgi argued that the Act in question—the Special Marriage Act, 1954—is a central legislation and therefore States need not be involved.

Sr. Adv. M. Rohatgi: Denying Queer Couples Marriage Equality Negatively Impacts Their Everyday Lives

Mr. Rohatgi stated that the petitioners were seeking a declaration from the SC that LGBTQIA+ couples possess the same secular right to get married under the Special Marriage Act as heterosexual couples.  He emphasised that the SC must give LGBTQIA+ couples real rights that impact their day-to-day lives. Queer couples often face issues with pension, gratuity, and adoption as they do not possess the right to marry. The Special Marriage Act and public spaces must also use gender-neutral terms in order to eliminate the stigma faced by queer couples. He pointed out that Section 4 of the Special Marriage Act, which speaks about solemnising marriage, contains the phrase ‘any two persons’ – a gender neutral phrase which provides the scope to recognises non-heterosexual unions.  Mr. Rohatgi emphasised the importance of deconstructing the heteronormative framework of marriage as intimate relationships are a key component of the right to privacy.

The boisterous Senior Advocate then drew the Bench’s attention to decisions from foreign jurisdictions, such as Obergefell v Hodges (2015). By analysing cases of different jurisdictions around the world, he argued that intimacy between consensual adults clearly cannot be restricted by the State. Further, there is historical evidence to prove that homosexuality existed in India for thousands of years. To substantiate this, Mr. Rohatgi referred to Khajuraho temple carvings that depict same-sex relationships.

Finally, Mr. Rohatgi focused on the Supreme Court’s obligations in this case and argued that the Court cannot wait for Parliament to enact a law first. When fundamental rights are breached, it is the SC’s jurisdiction and responsibility to listen to the person whose rights are violated under Art. 32 of the Constitution. Constitutional morality demands that the SC cannot turn a blind eye when equality and equal participation of citizens is at stake. Members of the LGBTQIA+ community are entitled to the rights to marry and not face discrimination. Culture and morality cannot take precedence over the Constitution.

The Bench briefly discussed what the legal age for marriage should be for non-heterosexual couples. CJI DYC enquired if it should be 18 for female same-sex couples and 21 for male same-sex couples, and asked what it should be for trans-couples.

Sr. Adv. A.M. Singhvi: Special Marriage Act Must Uphold Fundamental Rights of Queer Persons

Sr. Adv. A.M. Singhvi appeared next, also arguing in favor of marriage equality. He stated that there are three key aspects in this case:

  1. The interpretation of the Special Marriage Act.
  2. The notices and objections regime of the same Act.
  3. Achieving effective remedies. 

Mr. Singhvi claimed that the recognition of the right to choose in marital relationships regardless of sex, sexual orientation, gender and gender orientation is at the heart of this plea.

Furthering his arguments, Dr. Singhvi highlighted the various reasons people seek marriage: community and social acceptance of a relationship, safety and security, practical aspects like tax and insurance, as a source of fulfilment, and to achieve an integral part of family life. He argued that by recognising marriage equality for the queer community, all other practical aspects like adoption, maintenance, insurance, right to bodily remains of one’s partner, etc. would follow. 

Drawing the Bench’s attention back to Navtej, Dr. Singhvi stated that an individual cannot be discriminated against based on ascriptive characteristics. Sexual orientation and identity are innate to the individual. ‘So you’re saying the State cannot discriminate against an individual based on a characteristic over which a person has no control’, replied CJI Chandrachud in agreement. 

Moving on to the Special Marriage Act, Dr. Singhvi highlighted the secular nature of the law. Unlike other personal marriage laws, the Special Marriage Act is not based on a cultural understanding of marriage, he added. ‘You are saying that the Special Marriage Act is agnostic faith. So to say it is agnostic to sexual orientation is not a leap of faith’, questioned CJI Chandrachud. Dr. Singhvi agreed. 

Dr. Singvhi: Cannot Reject Non-Traditional Relationships Based on Sexual Orientation and Identity

Next, Dr. Singhvi addressed the Union’s arguments based on rigid definitions of  ‘man’ and ‘woman’. Terming this claim as self-validating reasoning, he argued that the State cannot justify not recognising same-sex marriage merely because they defined marriage to be between a man and a woman. Moreover, even if a law is made expressly to create such a classification, it cannot be allowed to bypass the conditions of equality and non-discrimination laid down by Article 14.  

Addressing the changing nature of society, Dr. Singhvi argued that laws must keep up with this change. ‘Societal values cannot trump the principles of equality and non-discrimination’, he argued. The obligation on the government is to ensure that laws are constitutionally compliant. 

Moving on to the next leg of his arguments, Dr. Singhvi addressed traditional and non-traditional relationships. While traditional relationships were between a man and woman for the purpose of procreation, heterosexual couples are not discriminated against when they don’t ascribe to these norms. To discriminate against homosexual couples on this grounds, then, would be a violation of the Right to Equality. 

Dr. Singhvi also addressed the right to freedom of expression and the right to life. ‘The freedom of expression under Article 19 includes in it the right to express one’s gender in all its manifestations’ he argued. Further, excluding queer persons from the right to marriage also breaches their right to dignity, as this implies that the queer community is less worthy compared to others. 

Previously, Dr. Singhvi added, the SC removed caste-based and gender-based discrimination in matters of temple entry and participation in religious ceremonies, as well as discrimination against disabled persons. ‘The exclusion of the LGBTQIA+ (community) from marriage is one of the last social outposts that sanctions discrimination. Removing this will further constitutional goals’, he argued.  

Concluding his arguments for the day, Dr. Singhvi expressed the importance of recognising marriage equality for same-sex couples. ‘Most human beings want more than that… Many couples want stability and permanence of sharing a home, with or without children’, he stated.

Dr. Singhvi will complete his arguments tomorrow (April 20th).