Plea for Marriage Equality #1: SC Refers Plea to 5-Judge Constitution Bench

Plea for Marriage Equality

Judges: D.Y. Chandrachud CJI, P.S. Narasimha J, J.B. Pardiwala J

Today, A 3-Judge Bench of the SC led by CJI D.Y. Chandrachud heard a batch of petitions seeking the recognition of same-sex marriages under the law. The Bench has referred the plea to be heard by a 5-Judge Constitution Bench from April 18th, 2023.


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 a ‘male’ and a ‘female’ persons. This discriminates against same-sex 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 equality, freedom 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.

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.


The petitioners, represented by Senior Advocates A.M Singhvi and  Neeraj Kishan Kaul, argued the right to marry could not be withheld from a class of persons solely based on their sexual orientation. They relied on the SC’s decision in Navtej Singh Johar v. Union of India (2018) to state that the right to love and marry was recognised as a right in India. Further, they argued that same-sex marriages could be recognised under the provisions of the Special Marriage Act,1954

Solicitor General Tushar Mehta, representing the Union, argued that the matter fell into the realm of legislative action. He stated that the legislature had to consider the cultural ethos of the nation to see of such a recognition was acceptable. 

After a brief discussion, the Bench referred the matter to a 5-Judge Constitution Bench as it involved constitutional as well as statutory questions of law. Hearings will commence on April 18th, 2023.