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In the plea which was filed before the Supreme Court last year seeking recognition of same sex marriage, it was submitted that Special Marriage Act is ultra vires the Constitution of India to the extent that it discriminates between same sex couples as opposed to opposite sex couples denying same-sex couples both legal rights as well the social recognition and status that flow from marriage.
The Supreme Court today ordered to transfer all pleas pending before various High Courts seeking recognition for same sex marriage to itself.
A CJI Chandrachud led bench ordered, "Several batches of petitions are pending before the various HCs. We are of the view that they should be transferred to the Supreme Court. We accordingly direct that all these petitions shall be transferred before us."
"Any petitioner who desires to address this court through a virtual platform can do so if they suffer from a difficulty in appearing before us physically", the bench also comprising Justices Narasimha and Pardiwala further ordered.
Furthermore, Advocate Arundhati Katju and Advocate Kanu Aggarwal have been appointed as nodal officers for the petitioners and UOI respectively to work on the compilation of submissions from both sides.
The matter has now been listed on March 13, 2023 for directions.
In November last year, the Supreme Court had issued notice in the plea moved by a gay couple seeking legal recognition of same-sex marriage under the Special Marriage Act, 1954.
Senior Advocate Mukul Rohatgi appearing on behalf of the petitioner-couple had then submitted before a bench comprising CJI Chandrachud and Justice Hima Kohli that the issue was a sequel to Navtej Singh Johar judgment.
Absence of a legal framework that allows members of the LGBTQ+ community to marry any person of their choice has been raised by the instant plea.
It is the petitioner's case that the right to marry a person of one's choice is a fundamental right guaranteed under the Constitution of India to each "person" and has been recognized explicitly by the Supreme Court as well.
Last year, the Delhi High Court had issued notice on a plea seeking a declaration that the right to legal recognition of a same sex marriage or queer marriage is a fundamental right under Articles 14, 15, 19 and 21 irrespective of a person’s gender, sex or sexual orientation.
That petition was filed in pursuit of getting Overseas Citizen of India (“OCI”) card to same-sex spouse of an Indian citizen to visit India amid the restrictions imposed due the Covid-19 pandemic.
Submitting that consensual sexual acts between persons of the same sex had already been decriminalized by the Supreme Court in Navtez Singh Johar's case, the High Court was told that the right to marry a person of one’s choice is an essential component of the right to autonomy, privacy within Article 21 which has been recognized by a catena of judgments in India as well as by foreign courts.
Case Title: Supriyo vs. UoI
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