This case has been in highlight since the beginning of 2023, the facts of the case involved a writ petitions being filed by the two same-sex couples at the Supreme Court on November 14th, 2022. Supriyo Chakraborty and Abhay Dang were the first petitioners for the case. Parth Phiroze Merhotra and Uday Raj Anand filed the second petition. The petitioners challenged the validity of Section 4 (c) of the Special Marriage Act, 1954 on that ground that the provision discriminates against same sex couple by denying them benefits such as adoption, surrogacy, employment and retirement benefits. The Supreme Court transferred similar petitions to itself which were pending before High Courts. These other Petitions challenged the enactments including the Hindu Marriage Act, 1955 and the Foreign Marriage Act, 1969. On March 13th, 2023, a 3-Judge Bench led by CJI D.Y. Chandrachud referred the case to a 5-Judge Constitution Bench. On May 11th, 2023, the 5-Judge Bench reserved judgment after 10 days of hearings. On October 17th, 2023, the 5-Judge Bench pronounced its verdict on petitions seeking marriage equality for LGBTQIA+ persons.

→ Whether Supreme Court is vested with authority to hear this case? The Union Government contented that the Supreme Court deciding upon the question of same sex couple’s right to marry would amount to violation of Doctrine of Separation of Power and would lead to the Apex Court encroaching upon the legislative domain. The CJI DY Chandrachun while opining upon this issue noted upon the importance of Judicial Review and observed that the Supreme Court is well within its power to decide upon this question. Justice Bhat disagreed with the CJI and held that “court may feel the wisdom of a measure or norm that is lacking”, it must be careful to not venture into the powers and functions that are constitutionally awarded to other “departments and organs to discharge”. Though the impact of the lack of legal entitlements to queer persons is discriminatory, the Court cannot “fashion a parallel legal regime, comprising of defined entitlements and obligations” which would be required in this case.

→ Is there a Fundamental Right to marry? The court gave unanimous decision upon this issue that the Right to marry does not fall under the ambit of Fundamental Right. CJI Chandrachud held that “the Constitution does not expressly recognize a fundamental right to marry”. He pointed out that the laws relating to the institution of marriage are enacted by the Parliament. State legislatures are permitted to make amendments to such laws. He highlighted that some state legislatures who “have not created an institution of marriage in exercise of their powers...would be obligated to create an institution because of the positive postulate encompassed in the right to marry.” Justice S.R. Bhat agreed with the CJI and Justice Narasimha added that marriage is a fundamental freedom, not a right.

→ Do queer couples have right to marry? The 5 Judge Bench of the Supreme Court gave a split verdict on this question. The verdict delivered by 3:2 ratio denied that there exists a right for queer couples to get married. Justice DY Chandrachun and Justice S.K. Kaul ruled in favor of the queer couples. Justice Bhat, Justice Narasimha and Justice Hima Kohli gave the majority opinion. Justice Bhat leading the majority opinion held that all queer persons have the right to relationship and choice of partner, cohabit and live together, as an integral part of choice.” This is already recognised under Article 21. “Ordering a social institution” would require a completely different legal framework with “new universe of rights and obligations.” Justice Bhat noted that this would require a separate regime for registration of the civil union, laying down the conditions of a valid union, setting eligibility, age, restrictions, divorce, alimony and a bouquet of other rights that are ancillary to marriage. The state is not obliged to recognize this “bouquet of entitlements”.

→ Is the Special Marriage Act, 1954 unconstitutional? Deciding upon this question CJI Chandrchun held that declaring the SMA as “void” would “take India back to the pre-independence era” where inter-caste and inter-faith relationships were impermissible. “Such a judicial verdict would not only have the effect of taking the nation back to the era when it was clothed in social inequality and religious intolerance but would also push the courts to choose between eradicating one form of discrimination and prejudice at the cost of permitting another.” Justice Bhat noted that the “sole intention” of the SMA was to “facilitate marriage between persons professing different faiths”. At the time that the law was made, consensual sexual relations between persons of the same sex remained prohibited, and moreover, not the focus of the law. He held that “as long as an objective [of a law] is clearly discernible, it cannot be attacked merely because it does not make a better classification.”

→ Can the right to marry by queer be read into the provisions of the Special Marriage Act, 1954 by purposive interpretation? The CJI was of the view that the purposive interpretation of section 4 which clearly states a marriage between male and female would act as “workability model” that is by adding, deleting, or substituting words in Section 4. He held that “This Court would in effect be redrafting the law(s) in the garb of reading words into the provisions”, essentially violating the doctrine of separation of powers.”

→ Can unmarried and queer couples adopt? The Petitioners had also challenged Petitioners had challenged Regulation 5(3) of the 2020 Central Adoption Resource Authority Guidelines which restricts adoption to single individuals and married couples who are in a stable marital relationship for two years. Section 57(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 mandated that both spouses had to consent for adoption. The 5 judge bench gave a split verdict (3:2) on this question and held that queer couples are not entitled to adopt a child. Justice Bhat leading the majority opinion held that Section 57(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 clearly states marriage as a prerequisite to adopt a child. He also observed that “This framework ensures that if one parent abandons the relationship, the other can maintain themselves and the child - a remedy that a couple with no legal recognition is deprived of. Justice Bhat clarified that though a married couple is not a “morally superior choice”. However, the adoption framework takes into account the “protections and entitlements, [which] flow from the institution of marriage.” The “guiding principle” of the JJ Act is the best interest of the child, “not to enable adoption for all”. Justice Bhat also noted upon the rights of queer couple and noted that “State arguably has an even more urgent need to enable the full gamut of rights” to queer parents and children. The state needs to “ensure that the maximum welfare and benefits reach the largest number of children in need of safe and secure homes with a promise for their fullest development,”

→ Can transgender persons in heterosexual relationships marry under existing laws?
CJI Chandrachud held that a transgender person in a heterosexual relationship is entitled to marry after a “harmonious interpretation” of existing marriage laws and the Transgender Persons Act. He reasoned that marriage laws in India permit marriages arising out of heterosexual relationships. The existing laws such as the SMA or other personal laws describe a marital relationship between a “man” and a “woman”, “husband” and a “wife”, and “bride and a bridegroom”. If such is restricted, it would violate the Transgender Persons Act which prohibits discrimination of transgender persons. Further, he stated that a person is a transgender person by “virtue of their gender identity”, and it is not their “sexual orientation”.