Supreme Court of India dismisses marriage equality ruling appeals

On January 9, the Indian Supreme Court rejected petitions challenging its 2023 decision against marriage equality.

A panel of five judges—Justices Bhushan Ramkrishna Gavai, Surya Kant, Bengaluru Venkataramiah Nagarathna, Pamidighantam Sri Narasimha, and Dipankar Datta—concluded there were no errors in the original ruling that would merit reconsideration.

The Supreme Court, in a narrow 3-2 decision on October 17, 2023, led by Chief Justice Dhananjaya Yeshwant Chandrachud, decided not to recognise the constitutional validity of same-sex marriages in India, stating that it is the role of parliament to determine whether to extend marriage rights to same-sex couples. The court stressed that its function is to interpret laws, not to create them.

The judges reaffirmed the original ruling on January 9, stating, “We do not find any error apparent on the face of the record. We further find that 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 new bench, formed on July 10, 2024, after Justice Sanjiv Khanna withdrew for personal reasons, included Narasimha, who had been part of the original 2023 decision.

Harish Iyer, a well-known LGBTQ+ rights advocate in India and one of the plaintiffs, commented that the rejection is not the end of the struggle for equality, saying, “The admission of review petitions is a rarity, and while we will proceed with all legal recourses available this is not the only fight.”

In November 2023, some plaintiffs appealed the Supreme Court’s prior decision, arguing it contained “errors apparent on the face of the record” and labeled it as “self-contradictory and manifestly unjust.” The appeal criticised the court for recognising the plaintiffs’ discrimination but dismissing their claims with “best wishes for the future,” an approach the appeal argued fell short of the court’s constitutional duty to queer Indians and undermined the separation of powers envisioned by the constitution. It stated the majority ruling should be reviewed for dismissing legal precedents and declaring the constitution does not guarantee a fundamental right to marry, create a family, or form a civil union.

In an interview to the ‘Washington Blade’, Iyer expressed that the setback reminds us that change is achieved through collaboration and small victories, declaring, “We will have a multi-pronged approach.” He emphasised outreach to various groups and communities to push for marriage equality. “These small waves will create a force that will help us propel toward marriage equality,” he said, assuring the community he believes marriage equality will be achieved in his lifetime, stating, “I just hope that I am not too old to find someone to marry with by then.”

According to Supreme Court rules, a ruling is reviewed only if there is a mistake apparent on the face of the record, discovery of new evidence, or any equivalent reason. Reviews typically do not involve oral arguments and are examined just among the justices in chambers by the same judges who made the original ruling. However, Justices Sanjay Kishan Kaul, S. Ravindra Bhat, and Chandrachud retired after the original bench issued the ruling.

Souvik Saha, founder of the Jamshedpur Queer Circle, an LGBTQ+ organisation that conducts workshops with law enforcement and local communities, described the Supreme Court’s refusal as not just a legal setback but a significant disappointment for millions of LGBTQ+ individuals across India. He stated the decision enforces a sense of exclusion, denying the LGBTQ+ 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 countries like Taiwan and more than 30 others that have legalized same-sex marriage. “The lack of recognition in India, despite the 2018 Navtej Johar judgement — decriminalizing homosexuality, leaves the LGBTQ community in a vulnerable position.”

In Jharkhand, an eastern Indian state where socio-cultural stigmas are prevalent, the Supreme Court’s rejection underscores the ongoing struggle for equality. Saha shared that the Jamshedpur Queer Circle recently assisted a young lesbian couple who faced familial estrangement and threats when trying to formalise their relationship, highlighting the urgent need for legal protections and marriage equality for LGBTQ+ people.

“While the decision delays progress, it cannot halt the movement for equality,” Saha emphasised. “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.” He argued the ruling underlines the necessity to focus advocacy efforts on building a compelling case for social and political transformation.

Saha proposed mobilising the community through state-level discussions and storytelling campaigns to humanise the issue of marriage equality. He stressed the importance of crafting stronger petitions, backed by case studies, international examples, and data, to address judicial concerns effectively. Additionally, Saha suggested engaging with allies in civil society and corporate sectors to advocate for legislative changes, highlighting economic inclusivity's benefits, running campaigns to counter misinformation, and establishing support groups for LGBTQ+ individuals and their families.

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

Indrani Chakraborty, an LGBTQ+ activist and mother of Amulya Gautam, a transgender student from Guwahati in Assam state, criticised the Supreme Court's decision as an “insensitive approach,” stating, “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 and that should be irrespective of gender. Same-sex relationships will be there as always even with or without any constitutional recognition. The fight should go on, as I believe, this validates the intention. The community needs to stand bold, and equality be achieved.”