Same Sex Marriage

A five-judge Bench of the Supreme Court of India, led by Justice B.R. Gavai, on January 11, 2025, rejected petitions seeking a review of its October 2023 judgment that had refused to legalize same-sex marriage in India. The Bench stated that after thoroughly reviewing the judgments of Justices S. Ravindra Bhat, Hima Kohli, and Justice P.S. Narasimha, it did not find any error apparent on the face of the record. The decision was made through circulation in the judges' chambers, and the Bench included Justices Surya Kant, B.V. Nagarathna, and Dipankar Datta.

Legal Analysis:

The rejection of the petitions for a review of the October 2023 judgment is significant from a constitutional and human rights perspective. The core legal issue revolves around the right to equality, the right to marry, and the recognition of same-sex relationships within the Indian legal framework.

• The October 2023 Judgment: The Supreme Court of India, in its October 2023 judgment, had ruled against legalizing same-sex marriage, reflecting a majority opinion that did not find sufficient constitutional grounds to change the existing legal position. The judgment relied on interpretations of marriage under personal laws like the Hindu Marriage Act, which traditionally defines marriage as a union between a man and a woman.
• Review Petitions: The petitioners sought a review of this judgment, hoping the Court would reconsider its stance on same-sex marriages, citing rights to equality and freedom of choice under the Constitution.

Key Legal Provisions:

• Article 14 - Right to Equality:
  • The petitioners argue that the refusal to legalize same-sex marriage discriminates against individuals based on their sexual orientation, violating their right to equality under Article 14 of the Indian Constitution.
• Article 21 - Right to Life and Personal Liberty:
  • The right to marry, as part of personal liberty, is often argued to be a fundamental right under Article 21. The petitioners argue that the denial of the right to marry infringes on their liberty.
• Article 15 - Prohibition of Discrimination:
  • The petitioners argue that denying same-sex couples the right to marry is discriminatory, violating Article 15, which prohibits discrimination on the grounds of sex or other factors.
• Section 377 of IPC - Decriminalization of Homosexuality:
  • Section 377 of the Indian Penal Code was decriminalized in the 2018 Navtej Singh Johar case, but the legal recognition of same-sex marriages remains unresolved, reflecting a divide between decriminalization and social/legal acceptance.
• International Precedents:
  • Many countries have legalized same-sex marriage, which may inform the Indian legal discourse in the future. However, Indian law remains hesitant to align directly with international norms on this issue.

Constitutional and Legal Implications: 

• The refusal to review the judgment signifies that the Court is not yet ready to redefine marriage laws in India. While societal acceptance of LGBTQ+ rights is growing, the legal recognition of same-sex marriage faces resistance due to religious and cultural factors.