Indian Supreme Court Upholds Decision Against Marriage Equality

The Indian Supreme Court, on January 9, rejected several petitions challenging its 2023 ruling that denied marriage equality rights. The rejection was delivered by a 5-judge bench comprising Justices Bhushan Ramkrishna Gavai, Surya Kant, Bengaluru Venkataramiah Nagarathna, Pamidighantam Sri Narasimha, and Dipankar Datta. The bench upheld the original decision, asserting that no errors were apparent in the ruling that would warrant a review.

This decision follows an October 17, 2023, verdict by a five-judge Supreme Court bench, led by Chief Justice Dhananjaya Yeshwant Chandrachud, which in a narrow 3-2 decision, ruled against the constitutional recognition of same-sex marriages in India. The court held that it was the role of the parliament, not the judiciary, to extend marriage rights to same-sex couples, emphasizing its own limited function to interpret laws rather than create them.

The January 9 statement from the judges indicated they had meticulously reviewed the original rulings, concluding, "We do not find any error apparent on the face of the record." They further stated, "We find the view expressed in both the judgments is in accordance with law and as such, no interference is warranted. Accordingly, the review petitions are dismissed."

A reconstituted bench formed on July 10, 2024, following the unexpected recusal of Justice Sanjiv Khanna due to personal reasons, included Justice Narasimha, a member of the original ruling panel. Despite this setback, prominent LGBTQ rights activist Harish Iyer, a plaintiff in the marriage equality case, remains hopeful. "The fact that we have lost is a comma and not a full stop for equality," he remarked.

In November 2023, several plaintiffs had appealed the Supreme Court's original decision. Udit Sood and other lawyers representing them argued that the ruling contained "errors apparent on the face of the record" and criticized it as "self-contradictory and manifestly unjust." They highlighted the court's acknowledgment of discrimination faced by plaintiffs, followed by a dismissal that failed to meet constitutional obligations to queer Indians. The appeal pointed out that the ruling undermined the separation of powers and dismissed established legal precedents.

Harish Iyer emphasized a strategic approach moving forward, saying, "We will have a multi-pronged approach. We need to speak to parents groups, teachers, police personnel, doctors, and medical staff, news reporters, podcasters, grassroots activists, activists from allied movements, our local/state and national level elected representatives. We all need to do our bit in our circle of influence. These small waves will create a force that will help us propel toward marriage equality." He remains optimistic, expressing hope that marriage equality will be realized within his lifetime.

The Supreme Court's rules dictate that a ruling is reviewed only if there is a mistake or error apparent in the record, the discovery of new evidence, or a reason equivalent to these criteria. Appeals are typically considered without oral arguments, circulated among justices in chambers. However, in this case, several justices from the original bench, including Justices Sanjay Kishan Kaul, S. Ravindra Bhat, and Chandrachud, had retired.

Souvik Saha, founder of Jamshedpur Queer Circle, an LGBTQ organization that offers sensitization workshops, described the Supreme Court's refusal to hear the appeal as a significant blow to the hopes of millions of LGBTQ people across India. He lamented that the decision perpetuates exclusion, denying the community the constitutional promise of equality under Article 14 and the right to live with dignity under Article 21.

"This decision comes at a time when global momentum on marriage equality is growing," noted Saha, referencing Taiwan and more than 30 other countries that recognize same-sex marriage rights. He highlighted the lack of recognition in India despite the 2018 Navtej Johar judgment that decriminalized homosexuality, leaving the LGBTQ community in a vulnerable state.

Saha shared an instance where the Jamshedpur Queer Circle supported a young lesbian couple who faced familial disownment and threats when attempting to formalize their relationship. He stressed the need for marriage equality to provide legal safeguards for such couples, underscoring the urgent need for recognition and protection for LGBTQ individuals.

"While the decision delays progress, it cannot halt the movement for equality," Saha continued. "Marriage equality is inevitable in a country where nearly 60 percent of Indians aged 18-34 believe that same-sex couples should have the right to marry, according to an Ipsos LGBT+ Pride Survey from 2021. This ruling highlights the need to shift our advocacy strategy towards building a stronger case for social and political change."

Saha proposed several strategies for advancing the cause: mobilizing the community through state-level consultations, storytelling campaigns to humanize the issue, developing stronger petitions with case studies and international precedents, and pushing for legislative reforms by engaging with policymakers and allies in civil society and corporate India.

"Legal recognition of marriage is not just about ceremony; it is about the basic rights, dignity, and respect that every individual deserves," Saha concluded. "Together, through collective action, we will ensure that the arc of justice bends in our favor."

Indrani Chakraborty, an LGBTQ activist and mother of a transgender student in Assam, decried the Supreme Court's decision as an "insensitive approach." She stated, "Love and commitment are emotions that can never be under boundaries. Rejection of same-sex marriage is an oppressive approach towards the LGBTQI+ community. This is discrimination. Marriage provides social and legal security to the couple, irrespective of gender. The fight should go on, as I believe this validates the intention. The community needs to stand bold, and equality be achieved."