Regarding the review petitioners’ request for an open court hearing, CJI will have to make a decision.
On July 10, the Supreme Court will evaluate petitions asking for a reversal of its October 2023 ruling that outlawed same-sex unions in India.
On October 17, 2023, a five-judge panel consisting of Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat, Justice PS Narasimha, and Justice Hima Kohli unanimously rejected petitions requesting the Special Marriage Act’s permission for same-sex unions. The panel stated that legislation approving such unions should be changed by Parliament.
The bench has been reconfigured with Justice Sanjiv Khanna and Justice BV Nagarathna included as two of the members, Justices Kaul and Bhat, have retired.
Review petitions are often heard “in chamber”—that is, not in a public courtroom—through a process known as “hearing by circulation,” in which the parties’ attorneys are not permitted to submit arguments. But in rare circumstances, the highest court permits public hearings if it is persuaded that they are necessary.
Regarding the review petitioners’ request for an open court hearing, the CJI will have to make a decision.
The Supreme Court of India, holding that there is no basic right to marry, forbade same-sex partnerships while ordering the Center to establish a powerful committee led by the Cabinet Secretary to determine the rights and privileges of those in gay unions.
CJI Chandrachud, Justice Sanjay Kaul, Justice Bhat, and Justice PS Narasimha each delivered one of the four decisions. Judge Bhat and Justice Hima Kohli had reached a consensus. The judges had divided on some points and reached consensus on others in their rulings.
The CJI stated, “The Constitution does not expressly recognize a fundamental right to marry.” “There is no unqualified right to marriage except that recognized by a statute including space left by custom,” Justice Bhat similarly decided.
Judges Bhat, Kohli, and Narasimha expressed opposition to civil unions, while CJI and Justice Kaul supported it.
The Government was instructed by the Constitution Bench to form a powerful committee under the leadership of the Cabinet Secretary to determine the rights and privileges of individuals in gay unions.
The Center had argued that same-sex unions would “completely havoc” with the delicate balance of personal laws and were not in line with Indian ethos or society morals. The highest court did, however, decide that transgender people in heterosexual partnerships are entitled to marriage under current personal or statutory rules.
The Constitution Bench maintained a provision that forbade unmarried and homosexual couples from adopting children by a majority vote of 3:2.
Arguing that the right to marry a person of one’s choosing is guaranteed by Articles 19 and 21 of the Constitution, the petitioners claimed that the Special Marriage Act (SMA) infringed upon the dignity and decisional autonomy of LGBTQIA+ individuals, thereby violating their right to life and liberty as guaranteed by Article 21 of the Constitution.
Their argument was, however, denied, with the statement, “This court cannot either strike down the constitutional validity of SMA or read words into SMA because of its institutional limitations.”