The Supreme Court agreed to look into legalising same-sex marriages in India four years after decriminalising adult consensual private sexual relationships between LGBTQ+ communities. The court was seeking the Union government's response to two gay couples' requests that the 1954 Special Marriage Act (SMA) be made gender-neutral.
Two petitions were filed, one by Delhi-based partners Parth Phiroze Mehrotra and Uday Raj and the other by Hyderabad-based partners Supriyo aka Supriya Chakraborty and Abhay Dang. A bench of Chief Justice DY Chandrachud and Justice Hima Kohli gave notice to the Centre and requested that it submit its response in four weeks.
Appearing for the petitioners, senior advocates NK Kaul, Mukul Rohatgi, Menaka Guruswamy and Saurabh Kirpal told the bench that the SC, in its September 6, 2018 judgment in the Navtej Singh Johar case, had said that members of the LGBTQ community cannot be prosecuted or persecuted under Section 377 of the Indian Penal Code as they have a right to individual sexual orientation. After Kaul informed the court that there are currently nine petitions on the same issue pending before the high courts in Delhi and Kerala, and that the Union government had informed the Kerala HC that it would seek transfer of all these cases for a unified ruling by the Supreme Court, the SC decided to hear the two petitions from same-sex couples.
The SC had also said, “The choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour is intrinsic to the constitutional protection of sexual orientation. Members of LGBTQ are entitled to the benefit of an equal citizenship, without discrimination, and to equal protection of law.”
