SC closes door on same-sex marriage again, rejects review plea, says ‘no interference is warranted’

Citing “institutional limitations”, a five-judge bench, comprising then Chief Justice of India D Y Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and P S Narasimha, in four separate judgements, had declined to strike down or tweak provisions of the Special Marriage Act, 1954 (SMA), saying there was “no unqualified right” to marriage, and a same-sex couple could not claim it as a fundamental right under the Constitution. Rejecting the prayer to grant legal recognition to same-sex marriage, the bench had left it to Parliament to change the law to validate such a union.

On Thursday, rejecting petitions to review the ruling, the bench said, “We have carefully gone through the judgments delivered by Hon’ble Mr S Ravindra Bhat (Former Judge) speaking for himself and for Hon’ble Ms Justice Hima Kohli (Former Judge) as well as the concurring opinion expressed by one of us (Hon’ble Mr Justice Pamidighantam Sri Narasimha), constituting majority view. 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.”

In the 2023 ruling, the then CJI Chandrachud and Justice (since retired) Kaul, who were part of the five-judge bench, spoke in favour of a civil union, but it ended up being the minority view. CJI Chandrachud said this right to civil union or right to enter into an abiding cohabitational relationship could be traced to Part III of the Constitution, and thus placed a positive obligation on the State to accord recognition to it.

While agreeing that there is no fundamental right to marry, CJI Chandrachud also said “there is a right or freedom to enter into a union” as laid down in various judgments of the court – Navtej Johar, K S Puttaswamy, NALSA, Shakti Vahini, Shafin Jahan etc – “and that having regard to our constitutional values, which entail respect to the choice of a person whether or when to enter into marriage and the right to choose a marital partner”.

The review petitions filed against the judgment said the majority ruling suffered “from errors apparent on the face of the record” and was “self-contradictory and manifestly unjust”.

It said the majority judgment was erroneous because while it found that the respondents (authorities) were violating the petitioners’ fundamental rights through discrimination, yet it failed to enjoin the discrimination.

The petitioners contended that “the majority judgment overlooks that marriage, at its core, is an enforceable social contract. The right to so contract is available to anyone capable of consenting. Adults of any faith or no faith may engage in it. No one group of people may define for another what marriage means. No contract, nor forceful State action like imprisonment, may curtail an adult’s fundamental right to marry”.

The petitioners said the judgment “warrants review because it summarily disregards” what was said by the court in earlier decisions “to make the chilling declaration that the Constitution of India guarantees no fundamental right to marry or form a civil union”.

The judgment, they argued, “effectively compels young queer Indians to remain in the closet and lead dishonest lives if they wish the joys of a real family. It is fallacious that, under these facts, and in the absence of a fundamental right to marry or form a union, the rights to equal protection, dignity and fraternity are insufficient to justify judicial intervention”.