Constitution Bench formed in same-sex marriage case

Along with CJI, the other four Associate Judges on the Bench are Justices Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli and PS Narasimha.

Updated - April 16, 2023 12:15 am IST

Published - April 15, 2023 08:35 pm IST - NEW DELHI

A view of the Supreme Court of India, in New Delhi. File

A view of the Supreme Court of India, in New Delhi. File | Photo Credit: Sushil Kumar Verma

The Supreme Court on April 15, 2023 announced the formation of a new Constitution Bench headed by Chief Justice of India DY Chandrachud to hear a series of petitions seeking legal recognition of same sex marriages.

The other four Associate Judges on the Bench are Justices Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha.

The presence of Justice Kaul, the senior most judge in the Supreme Court after the Chief Justice, provides an additional gravitas. It is not often that the second senior most judge joins a Constitution Bench as an Associate Judge.

The hearing would begin from April 18 and is expected to be streamed live.

In the previous hearing, the Chief Justice had taken care to soothe the government’s anxiety about how same sex unions may “affect” the Indian “social ethos”.

The Centre expressed worry about the “psychological impact” such a relationship would have on children.

Solicitor General Tushar Mehta, for the government had flagged that by taking on this case the court would be “shouldering a very heavy burden of how society will develop henceforth”.

The government however had refused to link its worries to stigma about same sex relationships. “The question here is whether this relationship, as part of the right to dignity, can be given recognition by the state,” Mr. Mehta had said.

The law officer’s submissions nevertheless did not gel with a recent government affidavit in which the Centre sought to explain how same sex marriage was antithetical to the view held by many in India that marriage was a “holy union, a sacrament and a sanskar” between a biological man and a woman.

Chief Justice Chandrachud had said the case involved an “interplay” between constitutional rights of life, liberty, dignity, equal treatment of members of the LGBTQ+ community memberson one side and specific statutory enactments which considers only a married union between a biological man and woman on the other side.

The court had invoked Article 145(3) of the Constitution to refer the case to a five-judge Bench.

Article 145(3) mandates that cases involving substantial questions and interpretation of the Constitution should be heard by a Bench of at least five judges.

The petitioners had argued that the court’s judgment in Navtej Singh Johar in 2018, while decriminalising homosexuality, also upheld the individual right to family and choice of partners.

“Right to love and marry cannot be withheld from a class of persons solely on the basis of their sexual orientation or gender identity. Right to marry is the natural consequence of the decriminalisation judgment,” the petitioners submitted.

Senior advocates AM Singhvi, Neeraj Kishan Kaul, Menaka Guruswamy, advocates Arundhati Katju and Govind Manoharan, for petitioners, said the “right to life includes dignity of choice and family, marriage, procreating and sexual orientation”.

Mr. Kaul referred to the apex court’s judgment upholding privacy as a constitutional right, submitting that the right to privacy of same-sex couples involves “making vital, personal choices, including the right to marry”.

The petitioners have contended that the Special Marriage Act of 1954 should grant same sex couples the same protection it allowed inter-caste and inter-faith couples who want to marry. They said they did not want to interfere with individual personal laws but only sought to make the 1954 Act gender-neutral. The petitioners argued that 15 legislations which guaranteed the rights of wages, gratuity, adoption, surrogacy, etc, were not available to the LGBTQIA+ citizens.

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