Plea for Marriage Equality: Constitution Bench Day #1

Plea for Marriage Equality

Judges: D.Y. Chandrachud CJI, S.K. Kaul J, S.R. Bhat J, P.S. Narasimha J, Hima Kohli J

A 5-Judge Constitution Bench led by CJI Chandrachud heard a batch of petitions seeking the legal recognition of same-sex as well as other queer marriages.


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. Mukul Rohatgi: Same-Sex Couples Have a Fundamental Right to Marry.

Opening the arguments on behalf of the petitioners, Sr. Adv. Mukul Rohatgi argued that the fundamental right to marry must extend to same-sex couples and that the State is obligated to recognise this right. He relied on the SC’s judgements in  NALSA vs Union of India (2014), Justice K.S. Puttaswamy v Union of India (2017) and Navtej Singh Johar vs. Union of India (2018). NALSA and Navtej Singh recognised non-binary gender identities and guaranteed equal rights to homosexual persons. Puttuswamy recognised the right to privacy as a fundamental right. 

He sought a declaration by the SC stating that same-sex couples had a right to marry, and for this right to be recognised by the Special Marriage Act, 1954. He clarified that he was not going to touch upon any other personal laws for the same. 

Sr. Adv. A.M. Singhvi: SC Must Recognise the Marriage Rights of ‘Consenting Adults’

Sr. Adv. Abhishek Manu Singhvi expanded on Mr. Rohatgi’s arguments, stating that the right to marry could not be restricted to ‘same-sex’ couples alone but would also extend to other members of the LGBTQIA+ community. However, he shared Mr. Rohatgi’s view to restrict the scope of the case to just the Special Marriage Act and not involve any other personal laws. 

After deliberation, the Bench proposed that for now, the matter be limited to the Special Marriage Act and not involve any other personal laws.  

Sr. Adv. K.V. Vishwanathan: Equalise Existing Rights for All

Sr. Adv. K.V. Vishwanathan highlighted two possible approaches. The first was based on the Sikkim Old Settlers case (2023) wherein the SC held that striking down a challenged law (which treated men and women unequally) would deprive everyone of their rights. Hence, the favoured approach was to equalise the right for all affected paties. The second approach is the South African model seen in Minister of Home Affairs v Fourie (2005). Here, the South African Constitutional Court struck down the discriminatory definition of ‘marriage’, but allowed Parliament a year to come up with the legislative framework based on Constitutional values.  

Sr. Adv. Menaka Guruswamy: Court Must Address Day-to-Day Aspects of Life

Sr. Adv. Menaka Guruswamy disagreed with the CJI’s approach of avoiding the personal laws specifically with respect to the Hindu Marriage Act, 1955 (HMA). She argued that the HMA and the Hindu code was not a personal law, but was rather a statutory law which resulted from an evolution of laws not committed to sacramental Hindu law. To elaborate, she pointed out the doing away of mandatory ‘sagotra marriage’, doing away of the prohibition on intercaste marriage, and changes in inheritance law—all of which go against sacramental Hindu law. 

Partially agreeing with Ms. Guruswamy’s argument, CJI Chandrachud advised approaching the case in an incremental manner. He pointed out that the SC could not restrict itself to just the HMA. Personal laws governing other religious communities must also be addressed. If the case is approached in an incremental manner, Parliament too will have the opportunity to evolve with time. He highlighted that Parliament’s legislative role in this matter was undoubtedly involved. 

Ms. Guruswamy furthered her arguments by pointing out two facets to the petitions before the Court. The first, she argued, covers the fundamental rights under Articles 14, 19, and 21. The second aspect covers the day to day lives of the queer community. A mere recognition of the fundamental right to marry will not address the second, more practical, aspect of life. Queer persons will need laws allowing them to avail insurance, buy or rent homes, open bank accounts and so on.

Driving home the essentiality of her arguments, Ms. Guruswamy argued that petitioners will have to keep returning to the SC on every individual aspect if the Court does not address the practical aspects in this instance. ‘I am not able to nominate my partner for life insurance… This is our life’ she stated.

SG Tushar Mehta: Marriage Means the Union of a Biological Man and a Biological Woman

Solicitor General Tushar Mehta for the Union argued that the SC could not hear this case as it fell under the powers of Parliament. He further argued that ‘marriage’ was part of the Concurrent list of the Constitution and therefore, the SC could not hear the case without the involvement of the States. 

The SG also stated that the legislative intent behind the Special Marriage Act was to recognise a marriage between a biological man and a biological woman. The CJI was quick to rebut the SG, pointing out that the definition of a man and woman was more nuanced than just genital organs of a person.

Sr. Adv. Rakesh Dwivedi: There Is No Equality Between Homosexual And Heterosexual Couples

Sr. Adv. Rakesh Dwivedi, for the Union, argued that there was no equality between heterosexual and homosexual couples. He stated though the SC decriminalised homosexuality in Navtej Singh, it was not a ground for complete equality. The marriage of heterosexual couples was recognised for thousands of years as it furthered life. However, homosexual marriages did not enjoy the same recognition. 

In his arguments after lunch, Sr. Adv. Rohatgi stated that it was appalling for the State to say that there was no equality. He argued that by virtue of the Preamble of the Constitution, all citizens enjoyed equality before the law and the Constitution does not recognise different classes of people. It only stands for the ‘citizens of the country.’

Sr. Adv. Kapil Sibal: Address All The Issues Or None At All

Mr. Sibal appeared for Jamiat-Ulema-e-Hind, a Muslim organisation, which opposed same-sex marriages. He, however, drew the attention of the Bench to the fact that in other countries the judicial decision was followed by legislative changes. He argued that these were complicated issues that need to be dealt with care. Therefore, he pled to the Bench to address the issue either in full or not at all. The Bench stated that Mr. Sibal could assist the Court in the case going forward.

The Bench will resume hearing arguments tomorrow (April 19th, 2023).