Same-sex marriage: 5-judge SC bench to consider review pleas on January 9

A five-judge bench of the Supreme Court will on January 9 consider the pleas seeking review of its October 2023 verdict declining legal sanction to same-sex marriage.

A bench comprising Justices B R Gavai, Surya Kant, B V Nagarathna, P S Narasimha and Justice Dipankar Datta will take up about 13 petitions related to the matter in chambers.

According to practice, the review pleas are considered in chambers by judges. The top court had refused to allow an open-court hearing on the review pleas.

The new bench was constituted after Justice Sanjiv Khanna, the present CJI, recused from hearing the review petitions on July 10, 2024.

Notably, Justice P S Narasimha is the only member of the original Constitution bench comprising five judges which delivered the verdict, as former CJI D Y Chandrachud and Justices S K Kaul, Ravindra Bhat, and Hima Kohli have retired.

According to the Supreme Court's causelist, the review petitions would be considered at around 1.55 pm on January 9.

A five-judge Constitution bench led by then CJI Chandrachud on October 17, 2024, refused to accord legal backing to same-sex marriages and held there was "no unqualified right" to marriage with the exception of those recognised by law.

The apex court, however, made a strong pitch for the rights of LGBTQIA++ persons so they didn't face discrimination in accessing goods and services available to others; safe houses known as "garima greh" in all districts for shelter to members of the community facing harassment and violence, and dedicated hotlines in case of trouble.

In its judgement, the bench held transpersons in heterosexual relationships had the freedom and entitlement to marry under the existing statutory provisions.

It said an entitlement to legal recognition of the right to union, akin to marriage or civil union, or conferring legal status to the relationship could be only done through an "enacted law".

The five-judge Constitution bench delivered four separate verdicts on a batch of 21 petitions seeking legal sanction for same-sex marriages.

All five judges were unanimous in refusing the legal recognition to same-sex marriage under the Special Marriage Act and observed it was within Parliament's ambit to change the law for validating such a union.

While former CJI Chandrachud wrote a separate 247-page verdict, Justice Kaul penned a 17-page judgement where he broadly agreed with the former's views.

Justice Bhat, who authored an 89-page judgement for himself and Justice Kohli, disagreed with certain conclusions arrived at by the former CJI including on applicability of adoption rules for such couples.

Justice Narasimha in his 13-page verdict was in complete agreement with the reasoning and conclusion of Justice Bhat.

The judges were unanimous in holding that queerness was a natural phenomenon and not an "urban or elite" notion.

In his judgement, the former CJI recorded solicitor general Tushar Mehta's assurance of forming a committee chaired by the cabinet secretary to define and elucidate the scope of entitlements of such couples in a union.

The LGBTQIA++ rights activists, who won a major legal battle in 2018 in the Supreme Court, which decriminalised consensual gay sex, moved the apex court seeking validation of same-sex marriages and consequential reliefs such as rights to adoption, enrolment as parents in schools, opening of bank accounts and availing succession and insurance benefits.

Some of the petitioners sought the apex court to use its plenary power besides the "prestige and moral authority" to push the society to acknowledge such a union and ensure LGBTQIA++ persons led a "dignified" life like heterosexuals.