“The rights of the LGBTQIA+ community cannot be made contingent on the opinion of the majority”
– Raju Ramachandran

On 17th October, the Indian Supreme Court delivered a historic judgment on the recognition of Same Sex Marriage. The Indian Supreme Court refused to recognize the same sex marriage.

There was a bench of five judges, two judges Justice Dhananjay Yashwant Chandrachud who is also current CJI of India, and Justice Kishan Kaul gave their separate judgment in favor of Same Sex Marriage, but, the other three Judges, Justice Ravindra Bhatt, Justice Narsimha, and Justice Hima kohli pronounced their judgments against the recognition of Same Sex Marriage.

In this case, there were 21 Petitions, the grievance of the petitioners (who were members of the LGBTQIA+ community) was not that society discriminates against them in an informal (and invisible) manner. That is a secondary but an equally important stage of how discrimination pans out against a marginalised class.

The petitioners claimed that they are discriminated on a more formal (and visible) level. The petitioners contended that the State through the operation of the current legal regime discriminates against the queer community by impliedly excluding the queer community from a civic institution: marriage.

The petitioners invoked the equality code of the Constitution to seek legal recognition of their relationship with their partner in the form of marriage. The petitioners did not seek exclusive benefits for the queer community, which are unavailable to heterosexuals. They claim that the State ought to treat them on par with the heterosexual community.

Counsels appearing for the petitioners made the submissions detailed below-

Mukul Rohtagi

  1. This Court’s existing jurisprudence on LGBTQIA+ rights declares that LGBTQIA+ persons are entitled to dignity, equality, and privacy, which encompasses the fundamental right of LGBTQIA+ persons to marry a person of their choice. Accordingly, statutory recognition of such fundamental rights of LGBTQIA+ persons is merely a consequence of this Court’s jurisprudence[1];
  • Articles 19 and 21 of the Constitution guarantee all persons the right to marry a person of their choice, including LGBTQIA+ persons;
  • The Special Marriage Act (SMA) violates the right to dignity and decisional autonomy of LGBTQIA+ persons and therefore violates Article 21[2];
  • Excluding LGBTQIA+ persons from the SMA discriminates against them on the basis of their sexual orientation and the sex of their partner. This violates Article 15 of the Constitution;
  • The SMA is violative of Article 14 of the Constitution because:
  1. It denies LGBTQIA+ persons equal protection of the laws. Non-recognition of same-sex and gender-non conforming marriage causes prejudice to LGBTQIA+ persons and denies them rights under social welfare and beneficial legislations;
  1. It is manifestly arbitrary to exclude LGBTQIA+ persons from the SMA. There is no fair or reasonable justification to exclude LGBTQIA+ couples from the institution of marriage;
  1. There is no constitutionally valid, intelligible differentia between LGBTQIA+ and non-LGBTQIA+ persons. The classification in the present case is based only on the sexual orientation and gender identity of the parties to a marriage, which is constitutionally impermissible.

Further, there is no rational nexus with the object sought to be achieved by the SMA. The object of the SMA is to provide a civil form of marriage for couples who cannot or choose not to marry under their personal law. The exclusion of LGBTQ couples from the SMA has no rational nexus with this object;

  • There is no ‘legitimate state interest’ promoted or safeguarded by denying LGBTQ+ individuals the fundamental right of marriage;
  • Recognizing the right of LGBTQIA+ couples to marry upholds constitutional morality. Constitutional morality urges the organs of the state, including the judiciary, to preserve the heterogeneous nature of our society and encourage it to be pluralistic and inclusive;
  • Every person is entitled to marry someone of their choice. Queer people are equally entitled to the exercise of this right[3].;
  1. Denying LGBTQ+ individuals the right to marry inflicts personal harm on them and also inflicts a significant economic cost on the country;
  • Denial of the right to marry amounts to a deprivation of the entitlement to full citizenship as well as a denial of the right to intimacy;
  • The Constitution is a living document and ought to adapt to changing social realities. Notions of marriage equality are not necessarily opposed to social morality;
  • If a statute appears to violate the Constitution, then this Court may either declare it unconstitutional, or read it expansively to save its constitutionality. Matrimonial as well as other statutes can be read in a gender-neutral manner to include LGBTQIA+ couples within their ambit;
  • There is growing international consensus (including judicial consensus) which recognizes same-sex and gender non-conforming marriages, and this is in line with India’s international obligations;
  • Article 32 of the Constitution vests in persons or citizens a fundamental right to approach this Court for the enforcement of the rights guaranteed in Part III of the Constitution. It is therefore incorrect to argue that queer people must wait for Parliament to enact a law granting marriage equality;
  • Consequential reliefs must necessarily follow a declaration that the right to marry is vested equally in all persons including LGBTQIA+ persons;
  • The SMA ought to be read in a gender-neutral manner. Gendered terms such as “husband” and “wife” ought to be read as “spouse.” The language used in the SMA facilitates a gender neutral interpretation. Section 4 of the SMA is with reference to “any two persons,” Section 4(1)(a) refers to a “spouse” and Section 4(1)(b) refers to a “party”;
  • The age that must be attained before a person is eligible to marry under the SMA ought to be twenty-one years for all persons; and
  • Transgender persons may fall into the categories of either “man” or “woman” in the SMA, depending on the gender they identify with.

Dr. Abhishek Manu Singhvi

  1. The SMA is unconstitutional because it discriminates on the grounds of sexual orientation by preventing same-sex couples from solemnizing their marriages. Article 15(1) of the Constitution prohibits discrimination on the grounds of sex, which subsumes sexual orientation.

The requirement in the SMA that a couple should consist of a man and a woman is one which is based on ascriptive characteristics (attributes that are pre-determined or designated by society or other external norms) and is an exclusion based on a marker of identity;

  • Marriage is not simply a benefit or privilege. Rather, it forms the very basis of a couple’s ability to fully participate in society. Marriage is a source of social validation, dignity, self-respect, fulfilment, security (financial and otherwise), and other legal and civil benefits including in the domain of tax, inheritance, adoption, etc.;
  • The exclusion of same-sex couples from the SMA is violative of Article 14 of the Constitution. While there is an intelligible differentia for the classification in that the sexual orientation of heterosexual and homosexual persons is different, there is no rational nexus with any legitimate state purpose. A legislative purpose cannot itself be discriminatory or unconstitutional;
  • The exclusion of same-sex couples from the SMA is violative of Article 19 of the Constitution. The act of entering into a marital relationship is protected under Article 19(1)(a) of the Constitution, and is a socially valuable form of expression. The restriction on the right of queer persons to marry is not a reasonable restriction under Article 19(2)[4];
  • The exclusion of same-sex couples from the SMA is violative of their right to dignity and is therefore violative of Article 21 of the Constitution. The exclusion of same-sex couples from the institution of marriage is being used to send a public message about their worth as unequal moral members of society and is inter alia akin to caste-based restrictions on temple entry and the refusal to accommodate disability in public examinations;
  • The SMA authorizes the solemnisation of same-sex marriages, when interpreted consistent with the Constitution. It can be read down in the following manner to include the solemnization of marriages between non-heterosexual persons:

i. The word “man” in Section 2(b) includes “any person”, and that correspondingly, the word “woman” includes “any person”;

ii. The words “man” and “woman” include trans-men and trans- women, intersex and non-binary individuals as the case may be;

iii. Section 4(c) enacts only an age-based exclusion for persons otherwise eligible to marry under the provisions of Section 4, and shall not be construed to impose any disabilities based on gender, sexual orientation, or sexual identity of the parties.

For same sex couples in particular, Section 4(c) can be read as a single age-restriction, be it eighteen or twenty-one. In the alternative, Section 4(c) may be read as prescribing the minimum age as eighteen for both parties in the case of a lesbian relationship and twenty-one for both parties in the case of a gay relationship.

For non-binary and inter-sex persons, the SMA may be read as imposing no restriction beyond that imposed by other laws which stipulate the age at which persons become capable of binding themselves under law i.e., eighteen years. In the alternative, this Court may lay down guidelines as an interim measure while leaving it open to Parliament to fill the vacuum in due course of time;

iv. The reference to “widow” and “widower” in Schedules II and III must be read as “widow or widower” and “widower or widow,” as the case may be, and shall not be construed to impose any disabilities based on gender, sexual orientation, or sexual identity of the parties;

v. References to “bride” and “bridegroom” in Schedules III and IV must be read as “bride or bridegroom”, as the case may be, and shall not be construed to impose any disabilities based on gender, sexual orientation, or sexual identity of the parties.

  • The Foreign Marriage Act 1969 can similarly be read down;
  • The relief sought by the petitioners is workable;
  1. In reading down the SMA and the FMA to achieve a constitutionally compliant interpretation, neither the text of the statute nor the intention of Parliament act as a limitation. Only the underlying thrust of the legislation and the institutional capacity of this Court are relevant. The underlying thrust of the SMA is that it was designed to facilitate marriages lying outside the pale of social acceptability. Reliance was placed on Ghaidan v. Godin-Mendoza [2004] UKHL;
  • In the alternative, the principle of updating construction ought to be applied to the SMA. Courts may expand the existing words of a statute to further the march of social norms and contemporary realities;
  • Some laws (such as the Protection of Women Against Domestic Violence Act 2005, the Dowry Prohibition Act 1961, provisions pertaining to cruelty in the Indian Penal Code 1860) were enacted to address structural imbalances of power between men and women in a heteronormative setting.

These provisions of law do not impact whether same-sex couples have a right to marry. These provisions are beyond the scope of the petitions and need not be interpreted in favour of either spouse in a non-heterosexual marriage;

  • There is no timeless and immutable conception of marriage. The SMA itself was enacted contrary to the cultural and social understanding of marriage which prevailed at the time. Further, the SMA is a secular and areligious law which was meant to serve as an alternative for those who could not or did not want to solemnize their marriages under the applicable personal law, which is rooted in religion.

The conditions for the solemnization of a marriage under the SMA need not, therefore, conform to the cultural, social, or religious understandings of marriage;

  • The principles of equality and non-discrimination cannot be trumped by societal values. These principles, by definition, require a challenge to majoritarian social norms;
  • This Court is not being asked to act as a substitute for the legislature or to alter the “concept of marriage.” Rather, this Court is being asked to find that the exclusion of a group of people from the SMA solely by virtue of their ascriptive characteristics is unconstitutional. A constitutionally compliant reading of the SMA to allow for marriage equality is within the bounds of legitimate statutory interpretation and is not judicial legislation; and
  • Civil unions are not an equal alternative to the legal and social institution of marriage. Relegating non-heterosexual relationships to civil unions would send the queer community a clear message of subordination – that their relationships are inferior to relationships that comply with the entrenched heteronormative social order.

Mr. Raju Ramachandran

  1. The petitioners have a fundamental right to marry a person of one’s own choice under Articles 14, 15, 19, 21 and 25 of the Constitution, and any exclusion or discrimination, as incorporated in Section 4(c) and other provisions of the SMA, is ultra-vires the Constitution. The denial of their right to marry violates Articles 14, 15, 19, 21 and 25. Article 21 encompasses the right to happiness, which includes a fulfilling union with a person of one’s choice;
  • The exclusion of the petitioners from the institution of civil marriage under SMA, 1954, is inconsistent with the very object of the law, i.e., to facilitate any marriage between two Indians, irrespective of caste, creed or religion;
  • The systemic nature of natal family violence against LGBTQIA+ persons, owing to their sexual or gender identity, and the misuse of the criminal law machinery by the families, often in collusion with local police, makes it imperative for this Court to frame guidelines concerning the police action in dealing with cases of adult and consenting queer and transgender persons.
  • The special provisions for a wife in a heterosexual marriage under the SMA need not be interpreted by this Court while deciding this batch of petitions because they are protective provisions for women in pursuance of the constitutional mandate in Article 15(3).

Similarly, gender-specific laws including penal laws need not be subject to any interpretative exercise. Religious personal laws are also not required to be interfered with;

  • Declarations by the court as to rights of people are followed by legislation. For instance, the rights declared in National Legal Services Authority (supra) were given effect to in the Transgender Persons Act;
  • The doctrine of reading-in is well-recognised in Indian jurisprudence; and g. The Union of India has sought to argue that only Parliament can grant a new ‘socio-legal status of marriage’ to LGBTQ persons, after undertaking extensive consultations and eliciting views from every part of the nation. The rights of the LGBTQIA+ community cannot be made contingent on the opinion of the majority.

Mr. K V Vishwanathan

  1. Under Article 21 of the Constitution, all persons have a fundamental right to choose a partner;
  • International covenants to which India is a signatory including the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights enjoin a duty upon the state to not interfere with the right of a person to marry and have a family in terms of their own choice as well as to protect the familial rights of all persons without discrimination on the basis of inter alia sexuality, race, and religion;
  • Statutes regulating marriage in India must be read as inclusive of all gender identities and sexualities in view of the pronouncements of this Hon’ble Court in National Legal Services Authority (supra) and Navtej (supra). Such a reading is necessary to ensure that these statutes pass muster on the touchstone of Part III of the Constitution;
  • Courts across the country as well as state policies and welfare schemes have recognised and accorded equal status to unions between LGBTQ persons. A necessary corollary of the right to self-identify gender is to be able to express personal preference in terms of choice of partner, and, therefore a marriage entered into by a transgender person must be fully recognised by the State[5];
  • This Court has previously issued guidelines to protect citizens against discrimination in cases where there existed a lacuna in the law[6];
  • The freedom to choose a partner in marriage would be covered under Article 19(1)(a) as an expression, under Article 19(1)(c) as an association or union and Article 19(1)(e), as an exercise of the right to reside and settle in any part of the territory of India[7];
  • Excluding transgender persons from matrimonial statutes fails the reasonable classification test under Article 14;
  • Transgender persons have a right against discrimination under Articles 15 and 16;
  1. The right of transgender persons to marry is enjoined by the Transgender Persons Act. The classification sought to be made by the Union of India between “biological” and transgender persons is untenable;
  • Procreation is not the sole purpose of marriage. Marriage is not merely the meeting and mating of two individuals but much more – it is the union of two souls;
  • If the contention of the Union of India that ‘male’ and ‘female’ as provided in statutes are to be construed to refer to cisgender males and females, it would lead to absurd and unjust outcomes in implementation of several laws.

For instance, the Hindu Succession Act 1956 defines an ‘heir’ as any person ‘male or female’ entitled to succeed to the property of an intestate under said Act. If the Union of India’s argument is taken to be correct, it would lead to a situation where a transgender heir of a person who has died intestate would not be able to inherit the property, even if they happen to be the sole heir;

  • The National Commission for Protection of Child Rights (NCPCR) has made unscientific claims on the effect of puberty blocker / sex-transition therapy on children. They are in complete disregard to the internationally accepted guidelines issued by World Profession Association for Transgender Health, which are also referenced in the Transgender Persons Act; and
  • The petitioners’ constitutional rights cannot be denied based on an argument that it would offend the “will of the people.” Constitutional morality cannot and ought not to be replaced by social morality.

Ms. Geetha Luthra:

a. The FMA is applicable to a couple if at least one of them is an Indian citizen. The FMA travels with the citizen to a foreign jurisdiction to extend its protection by recognizing the citizen’s marriage contracted under foreign law, or by allowing a citizen to solemnize their marriage under Indian law even when they are abroad. In terms of Section 17 of the FMA, a marriage must be valid in terms of foreign law and consistent with international law;

b. All citizens including LGBTQIA+ citizens are entitled to all rights available to Indian citizens, even if they are abroad. Articles 19 and 21 of the Constitution guarantee all persons the right to marry a person of their choice, including LGBTQIA+ citizens. The FMA violates the right to dignity and decisional autonomy of LGBTQIA+ persons and is discriminatory. Reliance was placed on National Coalition for Gay and Lesbian Equality v. Minister of Home Affairs [2000] 4 LRC 292;

c. The object of the FMA in adopting the scheme of the SMA is to provide a uniform, civil and secular marriage law for a couple, either of whom is an Indian citizen. However, by recognizing marriages only between opposite sex couples, the effect of the law is to deny same-sex and gender non-conforming couples the right to marry a person of their choice, solely on grounds of their sexual orientation and gender identity. This is violative of Article 15 of the Constitution;

d. The SMA and the FMA are violative of Article 14 of the Constitution because they deny LGBTQIA+ persons the equal protection of laws, are manifestly arbitrary, and fail the rational nexus test. There is no intelligible differentia between LGBTQIA+ and non-LGBTQIA+ couples.

The object of the FMA is to extend the protection of the Indian Constitution and its laws to a citizen abroad regardless of who they choose to marry and under whichever law they choose to do so, to provide for maximum international validity of a marriage, and in adopting the framework of the SMA, to provide for a uniform, civil and secular law to govern foreign marriages. The exclusion of same-sex and gender non-conforming couples from the FMA has no rational nexus with these objects;

e. The FMA is pari materia to the SMA. They must be interpreted similarly with regard to same-sex and gender non-conforming marriages;

f. Recognition of marriage of same-sex and gender non-conforming couples under the FMA furthers the comity of nations; and

g. The grant of reliefs does not render the provisions of the FMA or other statutes employing gendered terminology unworkable.

Mr. Anand Grover:

a. Marriage remains fundamental to the functioning of the society, and to avail important schemes under the modern nation – state, such as joint tax benefits and rights of surrogacy;

b. The FMA must be interpreted liberally to advance the cause of society at large. It must not be interpreted to cause hardship;

c. The failure of the SMA to recognize same-sex marriages violates Articles 14 and 15 of the Constitution because it fails the reasonable classification test, is manifestly arbitrary, and discriminates based on gender identity and sexual orientation;

d. The failure of the SMA to recognize same-sex marriages violates Article 19(1)(a) of the Constitution because sexuality, gender expression, and marriage are forms of expression;

e. The right to intimate associations is protected by Article 19(1)(c) of the Constitution. Reliance was placed on Griswold v. Connecticut 381 US 479 (1965);

f. Same-sex marriages or gender non-conforming marriages form a part of Indian tradition and culture. Reliance was placed on National Legal Services Authority (supra);

g. Queerness or homosexuality is not an urban, elite conception or expression. Numerous queer or homosexual couples from villages and towns in India have expressed their sexuality, chosen their partner, and entered into the institution of marriage; and

h. There is no traditional bar on marriage between non-heterosexual persons. Excerpts from various scriptures support this proposition.

Ms. Jayna Kothari:

a. The SMA ought to be read to include the words “spouse” and “person” so as to include transgender persons within its ambit. Failure to do so amounts to a violation of the right of transgender persons to equality and to equal protection of the laws under Article 14 of the Constitution;

b. The SMA discriminates on the basis of sex, gender identity, and sexual orientation, thereby violating Article 15 of the Constitution;

c. The denial of the right to marry to persons based on their gender identity is a denial of the right to dignity, personal autonomy, and liberty under Article 21 of the Constitution;

d. Inter-sex persons have the same rights as all other persons in India, including the right to marry; and

e. The right to a family is available under Article 21, and this right includes the right to marry. The SMA is violative of the right of transgender persons to have a family.

Dr Menaka Guruswamy:

a. The Indian Parliament is a creature of the Constitution and does not enjoy unfettered sovereignty. The supremacy of the Constitution is protected by this Court by interpreting laws in consonance with constitutional values;

b. This Court’s power of judicial review over legislative action is part of the basic structure of the Constitution;

c. Constitutional courts are empowered to review statutory law to ensure its conformity with constitutional values. The courts do not need to wait for the legislature to enact/amend law to recognize same-sex marriage;

d. The provisions of SMA, insofar as they do not recognize same-sex marriages, are unconstitutional as being violative of Articles 14, 15, 19, 21 and 25 of the Constitution. Hence, to save it from the vice of unconstitutionality, the SMA must be read up to recognise same-sex marriages;

e. Recognition of same-sex marriages under the SMA is consistent with the evolving conception of the institution of marriage;

f. Same-sex marriage is a time honoured tradition in the Indian society;

g. The gendered references in the SMA are capable of being read to recognize same-sex marriages;

h. The State has no legitimate interest in restricting the institution of marriage to heterosexual couples alone; and

i. The codification of Hindu personal laws commenced in 1941 with the colonial Government appointing the Hindu Law Committee, which prepared the first draft of the Hindu Code Bill. There was vociferous opposition to the Hindu Code Bill, which was later enacted into four distinct legislations – the Hindu Marriage Act 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act 1956, and the Hindu Adoptions and Maintenance Act 1956. Inter-caste marriages, sagotra marriages, the prescription of monogamy, and the introduction of divorce were met with great opposition.

Despite vehement opposition, these reforms have stood the test of time and society has prospered overall as a result. Today, the objections raised on behalf of the Union of India opposing the recognition of same-sex marriage are akin to the opposition to the Hindu Code Bill.

Mr. Saurabh Kirpal:

a. Depriving LGBTQ+ individuals of the right to marry violates Articles 14, 15, 19(1)(a) and 21 of the Constitution;

b. The right to marry a person of one’s choice is itself a Fundamental Right under the Constitution;

c. The SMA is unconstitutional if it is interpreted to exclude access to LGBTQ individuals from its ambit;

d. The intent of Parliament when it enacted the SMA is not relevant. The doctrine of reading in does not aim to discover the intention of Parliament. The jurisprudential basis of the doctrine is that courts read something in to save a statute from the vice of unconstitutionality;

e. Having found a right to marry, this Court cannot hold that there is no remedy or a real possibility for the exercise of that right; and

f. By virtue of Article 13, the Constitution trumps a statute which violates the Constitution. Analysis under Article 13 does not extend to whether or not a statute or a system of law is workable after it is read up or after certain words or phrases are read in to save it from being unconstitutional. It cannot be that a complex statute can defeat a fundamental right by virtue of its complexity.

Ms. Vrinda Grover:

a. Interference, opposition and violence from natal families, irrespective of marital status, violates the fundamental right to life and personal Liberty under Article 21 of the Constitution;

b. Non-recognition of ‘atypical families’ or ‘chosen families’ beyond constraints of marriage, blood or adoption violates Articles 14, 15, 19 and 21;

c. Non-recognition of marriage between two consenting adults on the basis of gender identity or sexual orientation under the SMA violates Articles 14, 15, 19 and 21;

d. Constitutional courts sometimes accord undue deference to the natal family. This ignores the coercion and violence that queer and transgender persons face within their homes.

e. This Court ought to issue directions to all state governments to instruct police officers to compulsorily follow the mandate of Sections 41 and 41-A of the Code of Criminal Procedure 1973 when responding to complaints involving queer and transgender adults who voluntarily leave natal homes;

f. Issues of ‘workability’ in statutory provisions do not preclude this Court from protecting rights under Part III of the Constitution.

Ms. Karuna Nundy:

a. A spouse of foreign origin of an Indian Citizen or Overseas Citizen of India cardholder is entitled to apply for registration as an OCI under Section 7A(1)(d) of the Citizenship Act 1955.

Section 7A(1)(d) is gender, sex and sexuality neutral, as distinct from the FMA and SMA. The absence of any conditions qua gender/ sex/sexuality of the parties is a casus omissus in the statute. This Court cannot supply a casus omissus into a statute by judicial interpretation, except in circumstances of clear necessity;

b. The recognition of a foreign marriage between two non-citizens is a mere ministerial Act. Only the substantive law of the foreign jurisdiction is relevant;

c. It would be manifestly arbitrary and contrary to Article 14, for the law to accord a larger ambit for registration of marriages to an OCI than to a citizen of the country married in a foreign jurisdiction, and to the extent of the inconsistency a harmonious construction of the FMA with the Citizenship Act is required;

d. A denial of the right to marry for queer persons is violative of Articles 14, 15, 19, and 21 of the Constitution; and

e. Rule 5 of the Transgender Persons (Protection of Rights) Rules 2020 recognises marriage of transgender persons because Form 2 contains the word “spouse”.

Ms. Anitha Shenoy:

a. The petitioners have a fundamental right to marry a person of one’s own choice under Articles 14, 15, 19, 21 and 25 of the Constitution, and any exclusion or discrimination from solemnization or registration, as incorporated in Section 4(c) and 17(2) and other provisions of the FMA is ultra-vires the Constitution;

b. The denial of recognition of the petitioners’ marriage is inconsistent with the very object of the FMA not to invalidate marriages duly solemnized under foreign law by Indian citizens;

c. The requirement of proof of a ‘marital relationship’ by a ‘married couple’ for the purpose of joint adoption under Regulations 5(2)(a) and 5(3) is beyond the remit of Section 57 of the JJ Act that extends joint adoption to relationships that are ‘marriage like’ including marriages between same-sex couples solemnized overseas;

d. Regulations 5(2)(a) and 5(3) of the Adoption Regulations 202249 are ultra vires the Juvenile Justice (Care and Protection of Children) Act 2015.50 They also violate:

i. The principle of equality and non-discrimination on the basis of sexual orientation under Articles 14 and 15;

ii. The right to adoption and motherhood protected under Article 21; and

iii. The right of a child to be adopted recognised under the Hague Convention on Protection of Children and Co-operation in respect of Inter-country Adoption 1980 and the Convention on the Rights of Children 1989.

Ms. Arundhati Katju:

a. Article 21 protects the right to found a family and the right to a meaningful family life for all persons including LGBTQ persons. The law defines “family” and “household” broadly and is not limited to a “biological” man and woman and their children. Surrogacy and adoption are available only to married couples, thus, denying LGBTQ couples the right to found a family;

b. A child’s right to a meaningful family life under Article 21, and its best interest, is protected by recognizing its parents’ relationship through marriage;

c. Denying LGBTQ couples the right to marry violates Article 14 qua them and their children;

d. The SMA should be read expansively to save it from the vice of unconstitutionality and in the alternative, it should be struck down;

e. Any interpretative difficulties which arise because of the exercise of reading-in must be decided on a case-by-case basis by the courts before which such issues arise; and

f. A declaration of the rights of queer people by this Court will not preclude any debates or discussions about queerness either in Parliament or in society.

Ms. Amritananda Chakravorty,:

a. The Office Memorandum issued by CARA on 16 June 2022 is unconstitutional because they prevent same-sex couples and gender non-conforming couples from availing of joint adoption; and

b. The requirements prescribed in the CARA Circular travel beyond the remit of the JJ Act. Section 2(49) of the JJ Act defines the term “prospective adoptive parents” to mean “a person or persons eligible to adopt a child as per the provisions of section 57.”

Section 2(49) does not require the prospective adoptive parents to be heterosexual. Further, Section 57 does not specify marital status as a relevant factor to be considered while determining the eligibility of prospective adoptive parents.

Mr. Raghav Awasthi,

He sought to make submissions regarding the Hindu Marriage Act. The Court declined to hear arguments on this issue in the present proceedings.

Mr. Shivam Singh:

a. It is unconstitutional for the state to discriminate against persons because of their innate characteristics;

b. Upholding the heterosexual notion of marriage as the only constitutionally and legally sanctioned notion of marriage will serve to perpetuate gender-based stereotypes proscribed by the Constitution and is therefore violative of Article 15; and

c. Resorting to the provisions of the General Clauses Act 1897, Section 4(c) of the SMA (which otherwise appears to be unconstitutional) can be read down such that the singular “male” and “female” includes the plural as well.

Manu Srinath:

a. Persons whose fundamental rights are violated are entitled to seek judicial review of the violating act;

b. It is permissible for judicial review to result in an increase in the size of the intended pool of beneficiaries of a legislation. Such an exercise will not amount to legislation by courts; and

c. Judicial review is a tool to achieve social justice. It is also a tool by which constitutional aspirations and ideals are achieved.

Jaideep Gupta:

a. If recognition is accorded to marriage by queer persons, they will be protected from so-called “conversion therapies” which attempt to “convert” the sexual orientation of queer people into a heterosexual orientation as well as forced marriages;

b. Queer marriages do not fall within the degrees of prohibited relationships; and

c. The classification on the basis of age in the SMA ought to be declared unconstitutional insofar as it mandates a different minimum age requirement for men and women. This Court ought to declare twenty-one years as the ideal age for all marriages. The Prohibition of Child Marriage (Amendment) Bill 2021, which seeks to raise the legally permissible age of girls to marry from eighteen years to twenty-one years is currently pending in Parliament.

Thulasi Raj:

a. The exclusion of the LGBT community from the institution of marriage is “demeaning” as defined by Deborah Hellman; and

b. Prejudicial notions about sexuality inform the SMA although its provisions may not expressly contain words which indicate such prejudices.

Tanushree Bhalla:

a. The word “man” in the SMA ought to be read as meaning a cisgender man, a transgender man, and any person who assumes a role in the marriage that the statute or society or the institution of marriage confers on men. The word “woman” must be interpreted in a similar fashion;

b. Section 4(c) of the SMA excludes intersex persons; and

c. A minimum age at which persons of the “third gender” may marry may be read in, in Section 4(c) of the SMA.


Supriyo @ Supriya Chakraborty v. Union of India (2023)

[1] Reliance was placed on K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 [9-Judge Bench], Navtej Singh

Johar v. Union of India (2018) 10 SCC 1, National Legal Services Authority v. Union of India (2014) 5 SCC

438, and Deepika Singh v. Central Administrative Tribunal 2022 SCC OnLine SC 1088

[2] Reliance was placed on Shakti Vahini v. Union of India (2018) 7 SCC 192

[3] Reliance was placed on Shafin Jahan v. Asokan K.M. (2018) 16 SCC 368, Shakti Vahini (supra), Laxmibai

Chandaragi B. v. State of Karnataka (2021) 3 SCC 360, Deepika Singh (supra)

[4] Reliance was placed on Union of India v. Naveen Jindal (2004) 2 SCC 510

[5] Reliance was placed on Arunkumar v. Inspector General of Registration AIR 2019 Mad 265, Sushma v.

Commissioner of Police, W.P. No. 7248 of 2021, Madras High Court, Mansur Rahman v. Superintendent of

Police 2018 SCC OnLine Mad 3250, Chinmayee Jena v. State of Orissa 2020 SCC OnLine Ori 602, Latha v.

Commissioner of 2021 SCC OnLine Mad 7495, Veera Yadav v. The Chief Secretary, Government of Bihar,

CW No. 5627 of 2020, Patna High Court, and Vithal Manik Khatri v. Sagar Sanjay Kamble, Crl. W.P. No. 4037

of 2021, Bombay High Court

[6] Reliance was placed on Vishaka v. State of Rajasthan (1997) 6 SCC 241, D.K Basu v. Union of India (1997)

1 SCC 416

[7] Reference was made to Saroj Rani v. Sudarshan Kumar Chadha (1984) 4 SCC 90