The Supreme Court of India on Monday ordered a special constitutional panel of five judges to consider a series of petitions related to same-sex marriage. The 15 petitions at issue were filed by same-sex couples and LGBTQ+ activists between 2020 and 2022. Collectively, they aim to change provisions in the secular Special Marriage Act (SMA) and Foreign Marriage Act (FMA) to be interpreted in a gender-neutral manner or, alternatively, to be held unconstitutional for violating the right to equality. The Constitution Bench will comprise five judges. Panels such as these can be established by India’s top court to rule on matters of law requiring constitutional interpretation or involving significant legal questions.
The SMA and FMA were introduced to provide civil marriages for inter-faith couples or those who choose not to marry in accordance with the religious standards applicable to their situations. Although the Acts do not explicitly prohibit same-sex marriages, Sections 2(b) and 4(c) of both Acts, which cover degrees of prohibited relationships and the minimum age for marriage, have been interpreted as stipulating heterosexual marriages since they refer to a “man” and “woman.”
The petitioners argued that this interpretation discriminates against same-sex couples by denying them matrimonial benefits such as adoption, surrogacy, inheritance, maintenance, pension, health insurance, compassionate appointments, being able to take medical or end-of-life decisions on behalf of the other, and tax benefits. “More importantly,” one of the petitions stated, “marriage is one of the key ways in which society accepts, respects, and validates a couple.”
The petitioners argued that excluding LGBTQ+ individuals from marriage violates the fundamental rights to equality, privacy, dignity, and liberty under Articles 14, 15, 19, and 21 of the Constitution of India. They placed reliance on progressive judgments such as Navtej Singh Johar v. Union of India (excluding consensual same-sex relationships from criminalization), NALSA v. Union of India, (recognizing non-binary gender identities), and S. Sushama v. Commissioner of Police (banning conversion therapy).
Some of these petitions also prayed for the striking down of Sections 5 through 10 of both Acts, which require a couple to have their information displayed publicly for a month in advance of the wedding. These provisions have been judicially recognized as providing options for families to thwart inter-caste or inter-community marriages, and are likely to have a similar impact on LGBTQ+ couples.
The counter-affidavit filed by the Indian government on Sunday asserted its opposition to recognizing same-sex marriages, stating the recognition of same-sex relationships in Navtej Singh Johar should not translate into a recognition of same-sex marriage since the latter did not align with the heterosexual and cis-gendered “Indian family unit concept of a husband, wife, and children.” It also argued the issue falls within the powers of the Parliament and not the judiciary. The counter-affidavit drew criticism from LGBTQ+ individuals and organizations.
The Constitution Bench will begin hearing the case on April 18.
