On July 10, the senior-most Supreme Court judge, Sanjiv Khanna, stepped back from reviewing its decision from October 17, which denied legal recognition to same-sex marriages. The court previously ruled that only Parliament and state legislatures have the authority to validate such unions. The upcoming hearing will consider several petitions seeking a review of the judgment. The case has been postponed and will now be brought before Chief Justice of India (CJI) DY Chandrachud, who will assemble a new bench.
Anyone dissatisfied with a judgment can file a review petition. This must be done within 30 days of the judgment, under the Civil Procedure Code and the Supreme Court Rules. Review petitions are typically considered by judges in their chambers and decided without a public hearing. However, if the judges find some merit in the petition, they can schedule an open court hearing with oral arguments. In this case, the petitioners have requested an open court hearing, hoping to present their arguments directly before the bench. However, the Chief Justice noted that traditionally, review petitions are considered privately in chambers.
A newly composed bench was supposed to handle the review petitions, as two judges from the original five-judge panel, Justices Sanjay Kishan Kaul and S Ravindra Bhat, have retired. Their places were filled by Justice Sanjiv Khanna and Justice BV Nagarathna. The bench also included Chief Justice of India DY Chandrachud, Justice Hima Kohli, and Justice PS Narasimha.
In a 3-2 majority decision on October 17, 2023, the Supreme Court declined to give legal recognition to same-sex marriages, as well as constitutional protection for civil unions and adoption rights for queer couples. The court contended that forcing the State to acknowledge such unions would violate the separation of powers and could result in unforeseen consequences. This ruling was a major setback for queer rights in India.
The Court unanimously confirmed that queer couples have the right to live together without facing violence, coercion, or interference. However, it declined to recognize these relationships as marriages officially. Chief Justice DY Chandrachud and Justice SK Kaul expressed support for civil unions for queer couples, while the remaining three judges on the bench did not agree.
Following the judgment, numerous review petitions were filed, criticizing the Court for failing to provide legal protection to queer couples despite acknowledging the discrimination they face. Petitioners argued that this failure amounted to the Court neglecting its duty to uphold fundamental rights.
They also contended that the judgment contained “errors apparent on the face of the record” and was “self-contradictory and manifestly unjust.” Although the Court acknowledged that discrimination faced by the Indian LGBTQIA+ community violated fundamental rights, it did not take the required measures to prohibit such discrimination.
If India were to legalize same-sex marriage, it would become the fourth Asian country to recognize these rights, following Taiwan, Nepal, and Thailand. This would mark a significant advancement for LGBTQ+ rights in the country.
On September 6, 2018, India made history when the Supreme Court decriminalized homosexuality by overturning Section 377 of the Indian Penal Code. This was a monumental victory for queer rights. The next steps toward protecting these rights involve recognizing same-sex marriages and civil unions. Although the Court has not yet ruled in favor of these rights, it is crucial to remember that the Constitution safeguards all individuals, regardless of their identity.
