New Constitution Bench to take up review pleas on same-sex marriage on Jan 9

Chief Justice of India Sanjiv Khanna has constituted a new five-judge Constitution Bench led by Justice BR Gavai which will take up on January 9 over a dozen petitions seeking review of the Supreme Court’s October 2023 verdict refusing to recognise same-sex marriages in India.

The other four judges on the Bench are Justice Justice Suryakant, Justice BV Nagarathna, Justice PS Narasimha and Justice Dipankar Datta. Justice Narasimha is the only judge who was on the original Bench that refused to recognise same-sex marriages in India. The other four judges on the original Bench were CJI DY Chandrachud, Justice SK Kaul, Justice Ravindra Bhat and Justice Hima Kohli who all have retired.

The matter was last taken up on July 10 by a Bench of Justice Chandrachud, Justice Khanna, Justice Kohli, Justice Nagarathna and Justice Narasimha. However, the hearing had to be deferred as Justice Khanna chose to recuse from the hearing citing personal reasons.

Review petitions are generally heard “in chamber” — and not in an open court — by a procedure called “hearing by circulation” where advocates representing the parties are not allowed to argue. But in exceptional cases, the top court allows open court hearing, if convinced about its need.

A five-judge Bench led by CJI Chandrachud (since retired) had on October 17, 2023 unanimously turned down petitions seeking to allow same-sex marriages under the Special Marriage Act, saying it’s for Parliament to effect changes in the law for validating such unions.

Holding that there’s no fundamental right to marry, the Supreme Court had refused to allow same-sex marriages in India even as it directed the Centre to set up a high-powered committee headed by the Cabinet Secretary to decide the rights and entitlements of persons in queer unions.

By a majority of 3:2, the Constitution Bench had upheld one of the adoption regulations that prohibited unmarried and queer couples from adopting children.

Contending that Articles 19 and 21 of the Constitution guaranteed all persons the right to marry a person of their choice, including LGBTQIA+ persons, the petitioners had contended that the Special Marriage Act (SMA) violated the right to dignity and decisional autonomy of LGBTQIA+ persons and therefore violated right to life and liberty guaranteed under Article 21 of the Constitution.

However, the top court rejected their contention, saying, “This court cannot either strike down the constitutional validity of SMA or read words into the SMA because of its institutional limitations.”