SC to review same-sex marriage verdict on Jan 9 with reconstituted bench
The reconstitution of the bench follows the July 2024 recusal of justice Sanjiv Khanna, who stepped aside from the case citing personal reasons
A new five-judge bench of the Supreme Court will consider review petitions in the same-sex marriage case on January 9, marking a crucial moment for the LGBTQIA+ community and legal advocates pushing for marriage equality.
The reconstitution of the bench follows the July 2024 recusal of justice Sanjiv Khanna, who stepped aside from the case citing personal reasons. Justice Narasimha is now the sole member from the original constitution bench that delivered the October 2023 verdict, as former Chief Justice of India Dhananjaya Y Chandrachud and justices Sanjay Kishan Kaul, Ravindra Bhat and Hima Kohli have all since retired.
The new bench, comprising justices Bhushan R Gavai, Surya Kant, BV Nagarathna, PS Narasimha, and Dipankar Datta, will deliberate on the petitions in chambers, adhering to the standard practice of closed-door proceedings for reviews. The bench has the discretion of allowing open court hearing if it agrees with the review petitioners that the matter warrants oral submissions because of its significance.
The review process faced a temporary halt in July 2024 when justice Khanna recused himself from the case. The earlier bench, comprising justices Chandrachud, Khanna, Kohli, Nagarathna and Narasimha, was set to review the October 17 judgment that refused to accord legal recognition to same-sex marriages and civil unions, instead leaving the matter to Parliament and state legislatures.
Justice Khanna’s withdrawal left the bench short of the required quorum. Justice Khanna, who took over as the chief justice of India (CJI) in November 2024, has now reconstituted the bench in his administrative capacity.
During the previous mentioning of this case, senior advocates Neeraj Kishan Kaul and Abhishek Manu Singhvi, appearing for the review petitioners, stressed that the petitions raised questions of national importance and societal transformation, warranting a departure from the norm of chamber hearings.
The October 17, 2023, judgment, delivered by a 3-2 majority, declined to grant same-sex couples legal recognition for marriages or civil unions, stating that the issue fell within the legislative domain. The majority opinion, penned by justices Bhat, Kohli and Narasimha, held that extending the right to marry or enter civil unions to queer couples was not a constitutionally protected mandate.
However, the dissenting opinions of CJI Chandrachud and justice Kaul emphasised the constitutional rights of queer individuals to form unions and adopt children, bemoaning the exclusion of non-heterosexual couples from existing legal frameworks. Both underscored that the State has a duty to create enabling laws that protect LGBTQIA+ rights.
The review petitions challenge the October ruling as “manifestly unjust” and inconsistent with constitutional values. Advocates for the LGBTQIA+ community argue that the court, despite acknowledging the discrimination faced by queer couples, failed to provide meaningful relief.
Udit Sood, a US-based lawyer and one of the 52 original petitioners, filed the first review plea in November 2023. He contended that the majority’s refusal to protect civil unions or grant adoption rights amounted to a denial of justice for queer individuals. Supriya Chakravarty and Abhay Dang, another petitioner couple, argued that constitutional courts have the authority to ensure statutory laws align with fundamental rights, without waiting for legislative action.
The review petitions also take issue with the court’s decision to sidestep the provisions of the Special Marriage Act, which the petitioners believe should have been interpreted to include non-heterosexual unions.
The January 9 hearing will be pivotal in shaping the future of LGBTQIA+ rights in India. While chamber hearings limit the scope of public and legal arguments, the petitioners remain hopeful that the reconstituted bench will take a progressive stance. They have argued that denying marriage equality contradicts the Supreme Court’s earlier judgments affirming the dignity, autonomy, and equality of LGBTQIA+ individuals, including the historic rulings in Navtej Singh Johar Vs Union of India (2018) and NALSA Vs Union of India (2014).
The case has far-reaching implications for India’s constitutional jurisprudence, particularly in balancing individual rights with legislative prerogatives. The reconstituted bench thus faces the challenge of navigating these complex issues while addressing criticisms of judicial restraint in the October 2023 ruling.
