Same-Sex Marriage: SC postpones hearing due to indisposition of two COVID positive judges

The Supreme Court's five-judge Constitution Bench headed by Chief Justice DY Chandrachud postponed hearing petitions seeking legal recognition of same-sex marriages in India. According to sources, the bench will not be hearing various petitions for same-sex marriage on Monday due to the indisposition of two judges of the five-judge Constitution Bench who have been reportedly diagnosed with COVID-19.

On Thursday, April 20, a five-judge bench headed by Chief Justice DY Chandrachud announced that it will hear the various petitions seeking legal recognition of same sex-marriage from Monday to Friday. However, the top court has now notified that on account of the indisposition of Justice Sanjay Kishan Kaul and Justice S Ravindra Bhat, it will not able to hold the court on April 24.

The Constitution Bench comprising the Chief Justice, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha is dealing with a batch of petitions pertaining to ‘marriage equality rights for the LGBTQAI+ community’. It is worth noting that the Constitution Bench started hearing the petitions on April 18.

Petitions being dealt with by Supreme Court seeking legal recognition of same-sex marriage

Various petitions are being dealt with by Supreme Court seeking legal recognition of same-sex marriage. The Centre has opposed the petitions. One of the petitions earlier raised the absence of a legal framework that allowed members of the LGBTQ+ community to marry any person of their choice.

According to the petition, the couple sought to enforce the fundamental rights of LGBTQ+ individuals to marry any person of their choice and said, “The exercise of which ought to be insulated from the disdain of legislative and popular majorities”. Further, the petitioners asserted their fundamental right to marry each other and prayed for appropriate directions from this Court allowing and enabling them to do so.

Petitioners seeking recognition of same-sex marriage 

Petitioners mostly include several same-sex couples and LGBTQ rights activists who haven't been able to get their marriages solemnised due to the current legal framework for same-sex marriage in India. 

According to sources, the prominent names of petitioners seeking recognition of same-sex marriage include Supriya Chakraborty, Kajal, Udit Sood, Zainab Patel, Nikesh PP, Mellissa Ferrier, Parth Firoze Mehrotra, Sameer Samudra, Aditi Anand, Utkarsh Saxsena, Nitin Karani, Akkai Padmashali, Amburi Roy, Abhijit Iyer Mitra, Nibedita Dutta, Kavita Arora, Vaibhav Jain, Joydeep Sengupta, Rituparna Borah, Harish Iyer, and others.

Moreover, the Delhi Commission for Protection of Child Rights (DCPCR) has extended its support to the batch of petitions already made before the apex court by same-sex couples seeking the legalisation of their marriage.

The DCPCR stressed that adolescents who identify as homosexual may have negative psychological complexes, low self-esteem, and other mental health problems if they do not have the same legal protection as their heterosexual counterparts.

Petitioners opposing legalisation of same-sex marriage 

Union of India: The Centre has stressed that legalising same-sex marriage is beyond judicial adjudication and the petitions before the Supreme Court reflect urban elitist views for the purpose of social acceptance.

National Commission for Protection of Child Rights (NCPCR): According to an application by NCPCR submitted before the top court, the adoption of children by same-sex couples would affect the child socially and psychologically.

Jamiat Ulama I Hind (JUIH): While opposing the recognition of same-sex marriage, JUIH has mentioned that this concept of same-sex marriage is an attack on the family system, rather than making a family through this process.

Telangana Markazi Shia Ulema Council: It argues that same-sex marriage is explicitly prohibited by Islam and the Quran which warns of punishment for transgressors.

Akhil Bhartiya Sant Samiti: The Sant Samiti claimed that the recognition of same-sex marriage would eradicate the very concept of marriage. 

Other than the organisations mentioned above, the states of Gujarat and Madhya Pradesh have approached the Supreme Court seeking intervention in the case and opposing the changes in other laws. Notably, there are several foundations and NGOs including Shree Sanatan Dharm Pratinidhi Sabha, Kanchan Foundation, Shakti Foundation; and individuals like Som Thomas, Anson Thomas, K Jerusha Joel, and Mohd. Manzur Alam and others, all of whom have impleaded in the case.