Government

The National Commission for Protection of Child Rights, a statutory body of the Bharatiya Janata Party-led Union Government, intervened in the Case opposing the extension of the right to adopt for sexual and gender minority individuals.^[10]

The State Governments of Assam, Gujarat and Madhya Pradesh led by the Bharatiya Janata Party, the State Government of Rajasthan led by the Indian National Congress, and the State Government of Andhra Pradesh led by the YSR Congress Party, intervened to oppose the right.^[11][12] The Delhi Commission for Protection of Child Rights, a statutory body of the Aam Aadmi Party-led Delhi Government, intervened to support extending the right to marry and adopt for sexual and gender minority individuals. The Commission recommended guidelines to ensure the well-being of children in same-sex adoptions.^[27]

Religious organisation

Hindu organisations Shri Sanatam Dharm Pratinidhi Sabha and Akhil Bhartiya Sant Samiti and Islamic organisation Jamiat Ulema-e-Hind and Telangana Markazi Shia Ulema Council intervened in the Case opposing the extension of the right to marry and establish a family to sexual and gender minority individuals in India on socio-legal and religious grounds.^[13][28][29]

Fundamental rights

Among the relevant precedents, issues and laws presented, the petitioners argued that the exclusion of couples from sexual and gender minority communities from marriage laws constituted a violation of fundamental right.^[6] Similarly, the notice and objection provisions in secular marriage laws— Special Marriage Act and Foreign Marriage Act— constituted a violation.^[22] Hence, following Article 32 of the Indian Constitution, which guarantees the Right to Constitutional Remedies and designates the Supreme Court as the protector of Fundamental Rights, the petitioners argued that they are within their rights to approach the Supreme Court.^[65]

Issues in secular marriage law

The notice and objections provisions detail the requirement for registering a marriage under the secular marriage laws— Special Marriage Act and Foreign Marriage Act. The individuals intending to marry must publish their details in Marriage Notice Book meant for public inspection. Within thirty days of publication, any person can object to their marriage, and a marriage officer, who has the power of a civil court, handles the objections.^[80][81]

Representative and heirs

Despite the landmark decision of the Supreme Court asserting the right to self-determination of sexual orientation and gender identity in NLSA v. UOI (2014), Puttaswamy v. UOI (2017) and Navtej Singh Johar v. UOI (2018), the birth or adoptive family continues to interfere and restrict the self-determination. As the vast majority of Indian laws define ‘family’ to be persons related by marriage, birth or adoption, the petitioners have presented a compelling case for legal recognition of their marital relationships to formalise access to rights and obligations. However, many others do not share the aspiration for married life, and the law cannot ignore them. They may choose friends, domestic partners and other persons of vital importance to assign rights and obligations.^[24]

While the conflict with the birth or adoptive family may have given rise to the idea of chosen family, it does not challenges birth or adoptive family bonds but allows for a more inclusive understanding of adult relationships. Most sexual and gender minority individuals, informed by their lived experience of family rejection, hostility and violence, require a legal substitute for the family for healthcare, social and economic rights and obligations. Recognising any person as capable of serving the best interests of an individual in a state of vulnerability or incapacitation, the Mental Healthcare Act of 2017 authorised an individual to appoint any person as the nominated representative. Legal limiting next of kin to persons related by marriage, birth or adoption violates the decisional autonomy of sexual and gender minority individuals.^[24]

The Supreme Court has recognised the principle of substantive equality, which prohibits the State from expecting conformity as a price for equality in Lt. Col. Nitisha v. UOI (2021). The Supreme Court held that married and unmarried persons have equal decisional autonomy to make decisions about their welfare in X v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi (2022). The Supreme Court held that atypical families deserve equal protection under the law guaranteed in Article 14 in Deepika Singh v. Central Administrative Tribunal (2022). Relying on these precedents, the petitioners argued that unmarried sexual and gender minority individuals deserve recognition and protection of the law when they seek to nominate any person beyond the constraints of biological or adoptive families.^[24]

High Courts have expanded the scope of legal heirs for intersex, non-binary and transgender people in Illyas v. Badshah alias Kamla (1990) and Sweety v. General Public (2016). The petitioners request the Supreme Court to declare that a person can nominate anyone in the place of ‘next of kin’ under all relevant laws.^[24]

International treaties

India is a party to various international treaties concerning human rights. India voted to adopt the Universal Declaration of Human Rights (UDHR) in United Nations General Assembly on 10 December 1948, and the same is enforceable in India under the Protection of Human Rights Act of 1993. India ratified the International Convention of Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) on 10 April 1979.^[83] Over the last three decades, International human rights law has developed an established jurisprudence on the rights to equality, privacy and autonomy of sexual and gender minority individuals and protection from discrimination based on sexual orientation and gender identity.^[84]

Since the Supreme Court enforced the international treaties discussed above while ruling in the NLSA v. UOI (2014) and Navtej Singh Johar v. UOI (2018), the petitioners argued extending the right to marry and establish a family to sexual and gender minority individuals based on the following articles:^[83]

• Article 7 of the UDHR, Article 26 of ICCPR and Article 2 of ICESCR prohibit discrimination based on ‘sex... or other status.’^[85][86][87] The UN Human Rights Committee stated that the ‘other status’ includes sexual orientation.^[88] The UN Committee on Economic, Social and Cultural Rights urged the member states to ensure that a person's sexual orientation is not a barrier to realising Covenant Rights.^[89]
• Article 16 of the UDHR, Article 23 of the ICCPR and Article 10 of ICESCR guarantee the right to marry and establish a family.^[85][86][87] Travaux préparatoires shows that drafters of UDHR changed the language in the right to marry from ‘everyone’ to the specific ‘men and women’ to highlight that women have the right to marry. The drafters did not intend to exclude same-sex couples from marriage.^[90] The UN Human Rights Committee urged member states to recognise marriage for same-sex couples to fulfil their ICCPR obligations.^{[91][92][93][94]}
• Article 12 of the UDHR and Article 17 of the ICCPR prohibit arbitrary interference with their privacy, family, home or correspondence.^[85][86]

Soft Law

The Supreme Court held that Yogyakarta Principles on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity (2007) is consistent with various fundamental rights enshrined in the Indian Constitution and stated that they must be recognised and followed in the decision of NLSA v. UOI (2014) and Navtej Singh Johar v. UOI (2018). The petitioners pointed to:^[95]

• Principle 24 of the Yogyakarta Principles, which recognises the right to establish a family, regardless of sexual orientation and gender identity. It calls for the State to recognise same-sex marriage or registered partnership and ensure that same-sex married or registered partners have the entitlements, privileges, obligations and benefits available to opposite-sex married or registered partners.^[96]

Obergefell v. Hodges (United States, 2015)

In anticipation of an oppositional argument that could emphasise marriage as traditionally and historically being limited to opposite-sex couples, the petitioners argue that generations of denial are not an argument for its perpetuation. They point to the majority opinion of Obergefell v. Hodges (2015), in which Associate Justice Kennedy wrote that if rights were defined by who exercised them in the past, then past practices would serve as continued justification for denying the new groups the rights.^[97]

In anticipation of an opposition prophesy that upholding everybody’s fundamental right to marry would diminish the worth of opposite-sex marriages, petitioners point to the conclusion of the majority on the same discussion in Obergefell v. Hodges (2015), “it is wholly illogical to believe that state recognition of the love and commitment between same-sex couples will alter the most intimate and personal decisions of opposite-sex couples.”^[97]

While deciding the Sunil Batra v. Delhi Administration (1978), the Supreme Court held that the despite the lack of the Due Process Clause in the Constitution of India same consequence ensued after the decisions in R.C. Cooper v. Union of India (1970) and Maneka Gandhi v. Union of India (1978). Affirming the verdict of Sunil Batra v. Delhi Administration (1978), the Supreme Court held that substantive due process is applied to the fundamental right to life and liberty in Mohd Arif v. The Registrar (2014).^[98]

Finally, the Supreme Court held that Article 14 of the Indian Constitution corresponds to the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution in Chiranjit Lal Chowdhuri v. UOI (1950). Hence, the United States Supreme Court ruling in Obergefell v. Hodges (2015), which held the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment of the Constitution is relevant to the current case.^[98]

Recognition of foreign marriage

The Supreme Court recognised the principles of comity of nations in the ruling of Mirza Ali Akbar Kashani v. United Arab Republic (1966), Tractor Export v. Tarapore & Co. (1969) and Gramophone Company of India Ltd. v. Birendra Bahadur Pandey (1984). The petitioners called attention to the fact that 32 countries have recognised same-sex marriage. Since Foreign Marriage Act has extra-territorial operations, petitioners argued that it should be read to conform with international developments.^[99]

Citizenship of sexual and gender minority spouse

The petitioners argue that the Citizenship Act does not authorise the officials to examine the marriage under Indian law. Therefore, as long as the marriage is validly registered overseas and the sexual or gender minority spouse of foreign origin satisfies other conditions, they are entitled to apply for OCI.^[46] They point to the ruling of the Israeli High Court of Justice that registration officials, who are not competent to examine the validity of the marriage under Israeli law, should register the same-sex marriage of Israeli Citizens performed validly overseas in Ben-Ari v. Director of Population Administration (2006).^[46]

Legislative policy

The petitioners highlighted various entitlements, privileges, obligations and benefits limited to marital, blood or adoptive relationships. These legal provisions exclude legally unrecognised spouses and families of sexual and gender minority individuals.

Entry and residence permits

A spouse of foreign origin of an Indian Citizen or OCI is entitled to apply for registration as an OCI under the Citizenship Act. OCI is a form of permanent residency which allows cardholders to live and work in India indefinitely. Without recognition of the right to marry, a foreign-origin sexual or gender minority spouse is not eligible for OCI Card.^[23]

Recognition of the right to marry for sexual and gender minority individuals is crucial for acquiring a visa and residency. Sexual and gender minority families cannot declare the name of their spouse or parent on their passports. Similarly, OCI cardholders are subject to the notification issued by the Union Government— for example, during the COVID-19 pandemic, the Union Government allowed OCI cardholders with Indian parents or spouses alone to enter the country.^[41]

Social exclusion and violence

Legally sanctioned exclusion, such as the prohibition of marriage between sexual and gender minority individuals, constitutes a form of structural discrimination which reinforces ignorance and prejudice and leads to widespread discrimination, rejection and violence against sexual and gender minority individuals in India.^[129][130] The petitioners demonstrate widespread discrimination, rejection and violence against sexual and gender minority individuals in India by reporting relevant peer-reviewed studies and news articles.^[131]

Family honour culture is one of the reasons for the harassment of sexual and gender minority individuals in India.^[132] A 2021 multinational study documented the attitudes towards violence against sexual and gender minority individuals in five countries: India, Pakistan, Malaysia, Iran and England. Indians ranked second, following Pakistanis, for their belief that gay men had damaged their family honour and their acceptance of verbal abuse and life-threatening violence by the family towards gay men.^[133]

Familial harassment takes various forms of violence and violations. A 2016 Indian study reported the family as the primary source of psychological, physical and sexual violence against sexual and gender minority individuals that normalises such violence for sexual and gender minority individuals in India.^[134] 2011 Indian qualitative study documented the endemic and pervasive nature of violence faced by sexual and gender minority women, such as psychological and verbal abuse, bodily harm, forced marriage, wrongful confinement, medical abuse and corrective rape.^[135] Familial harassment and rejection are common reasons for homelessness and suicide among sexual and gender minority individuals in India.^[136][137] India lacks comprehensive statistics on suicide among sexual and gender minority individuals in India.^[136] A 2011 Mumbai-based study of men who have sex with men found 45 per cent to be suicidal, with 15 per cent categorised as high risk.^[138] A 2016 Indian study estimated the suicide rate among transgender Indians as 31 per cent, and at least 50 per cent of them have attempted suicide at least once before their 20th birthday.^[139]

Couples from sexual and gender minority communities face familial harassment in the form of forced separation and wrongful detention or reporting their partners of kidnapping. If the couple were separated and detained by the parents, the partner has to approach a High Court for a writ petition for habeas corpus. The Courts frequently question the locus standi of the individual due to the non-recognition of their relationship.^[140] On the other hand, if the parents had reported the kidnapping, the police ascertained if the partner had left on their own accord. However, the seemingly straightforward procedure of recording the individual's statement to determine whether they are acting out of their free will gets complicated due to societal prejudice validated by the lack of the right to marry for sexual and gender minority individuals in India.^[141]

Reports have documented instances where lesbian couples have considered, attempted or committed suicide together.^{[142][143][144]} A lesbian couple, Asha Thakor and Bhavna Thakor, facing opposition from their family in rural Gujarat, committed suicide shortly after eloping to the city. The couple had eloped to find a safe space and acceptance but never found it.^[145] Similarly, a gay couple from rural Assam, Ankur Das and Brajen Thakuria committed suicide after their families firmly opposed their relationship and blamed them for one of their mother's early death.^[146] Despite the existence of suicide notes and social media posts, most of the cases end with first information reports and news articles, without any investigations and persecution of those abetting suicide.^[136]

Economic cost of social exclusion

The petitioners argued that the structural discrimination against sexual and gender minority individuals in India, such as the prohibition of marriage between sexual and gender minority individuals, hurts economic output— an unnecessary cost to all Indian citizens.^[44] Cross-country studies have estimated that the legal provision of same-sex marriage is associated with a long-term increase in GDP per capita of 54 to 64 per cent.^[161][162]

Discrimination in the workplace leads to underutilisation of human capital if a less skilled worker from favoured groups is hired or promoted instead of a skilled sexual and gender minority worker. If the skilled sexual and gender minority workers cannot find a suitable option, then the unutilised or underutilised skilled sexual and gender minority workers constitute a loss to economic output.^[162]

In addition to discrimination, the harassment of sexual and gender minority workers can reduce their productivity, even if their wages and employment are not directly affected.^[162] A 2016 study found that 40 per cent of sexual and gender minority workers experienced harassment by their peers, and 66 per cent heard negative comments about sexual and gender minorities.^[163] A 2019 study found that sexual and gender minority workers are 10 per cent less productive in the same job as the general population, leading to a loss of 0.4 per cent of GDP annually.^[164]

Several studies found a positive association between sexual and gender minority-inclusive policies and financial measures like stock prices, asset returns, per-worker output and employee innovation.^{[44][165][166][167]} It is not a coincidence that 91 per cent of Fortune 500 companies included sexual orientation in their non-discrimination policies in 2019.^[44][168]

Fundamental rights

The Union Government argued that denying the right to marry for sexual and gender minority individuals in India does not violate the fundamental rights guaranteed under Articles 14, 15, 19, 21 and 25 of the Indian Constitution. To make their case, they point to the Supreme Court ruling in Navtej Singh Johar v. UOI (2018) that explicitly differentiated and excluded marital relationships while reading down Section 377 of the Indian Penal Code for violating fundamental rights. They argue that the Supreme Court decriminalised homosexual conduct but did not legitimise it.^[9]

Normativity is an intelligible differentia which distinguishes opposite-sex couples from couples from sexual and gender minority communities. The rationale for this classification is to ensure social stability through legal recognition of marriage. Hence the non-recognition of marriage between sexual and gender minority individuals does not violate Article 14 of the Indian Constitution, which guarantees equality before the law or equal protection of the laws within the territory of India.^[9]

Opposite-sex couples living together do not enjoy the same status as opposite-sex married couples. The Supreme Court held the presumption of the marriage of couples living together is rebuttable in Badri Prasad v. Director of Consolidation(1978). Not every form of opposite-sex relationship is on par with opposite-sex marriage. Since the non-recognition of marriage between sexual and gender minority individuals is not discrimination only based on sex, it does not violate Article 15 of the Indian Constitution.^[9]

While all citizens have a right to an association under Article 19 of the Indian Constitution, the State is not obligated to recognise such associations. The State limits the legal recognition of marriage to opposite-sex couples. While the State does not recognise various forms of marriages, unions or relationships between individuals in society, they are not unlawful either.^[9]

Constitutional exception to fundamental rights

The Union Government pointed to the Supreme Court ruling that reading fundamental rights is not to be done in isolation but along with the Directive Principles of State Policy and the Fundamental Duties in Javed v. State of Haryana (2003). They argue that the principles of legitimate state interests as an exception to fundamental rights would be applicable in the current case.^[9]

International and comparative law

Given the context of the current case, the Union Government argued that Western decisions, without any basis in Indian Constitutional law jurisprudence, cannot be imported. The Supreme Court rejected the US decision that relied on the due process clause of the Constitution of the United States, which was absent in the Indian Constitution as it relied upon the tests of reasonableness in the ruling of Collector of Customs, Madras v. Nathella Sampathu Chetty (1962) and Santokh Singh v. Delhi Administration (1973).^[9]

Legislative policy

The acceptance of marriage between two individuals of the same gender is neither recognised nor accepted by any uncodified personal or codified statutory laws, such as the Christian Marriage Act of 1872, the Parsi Marriage and Divorce Act of 1936, the Special Marriage Act, the Hindu Marriage Act and the Foreign Marriage Act. Through specific references to opposite sexes, the legislative intent to limit the legal recognition of marriage to opposite-sex couples is clear. The Supreme Court affirmed that marriage is a legal union of a man and a woman in the ruling of Mr ‘X’ v. Hospital ‘Z’ (1998) and Reema Aggarwal v. Anupam (2004).^[9]

Extension of the right to marry to sexual and gender minority individuals would make laws governing marriage, ancillary rights and special provisions for married women otiose. The Supreme Court ruled that the ‘relationship in the nature of marriage’ specified in the Protection of Women from Domestic Violence Act does not include same-sex relationships in Indra Sarma v. V.K.V. Sarma (2013). The Union Government presented a list of legislations that will be affected if the Supreme Court extend the right to marry to sexual and gender minority individuals, demonstrating the consistent legislative policy that limits marriage to opposite-sex couples and the incompatibility between the right and the current Legislative Policy.^[9]

The above list demonstrates the clear legislative intent to limit the legal recognition of marriage to opposite-sex couples. The Supreme Court held that Judiciary is bound to the literal interpretation when the words of a statute are clear and unambiguous in the ruling of the Raghunath Rai Bareja v. Punjab National Bank (2007). While ruling in Subramanian Swamy v. Raju (2014), the Supreme Court held that the Judiciary could read down only when the reading of the provision produces an absurd or unworkable result and reads down a law to give effect to its legislative intent. It is not permissible for the Judiciary to change the entire legislative policy of the country deeply embedded in religious, societal, cultural and legal norms.^[9]

Recognising marriage and conferring ancillary rights, which have consequences in law and privileges, is a legislative function. The legislature would have to consider and deliberate on the right to adopt and other rights that would naturally follow the recognition of the right to marry for sexual and gender minority individuals. Only a legislature, which reflects the collective wisdom of the nation, can enact legislation based on societal values, beliefs and acceptability, and cultural history to govern, regulate, permit or prohibit human relationships, including issues such as marriage, adoption, divorce, and maintenance.^[9]

Regarding sexual or gender minority spouses, the respondent argued that the legislative intent of the Citizenship Act is to provide a mechanism for foreign citizens married to Indian Citizens or Overseas Citizens of India to obtain Overseas Citizens of India. It was never intended to recognise same-sex marriage. The Supreme Court held that Parliament is presumed to know the law of the land when it is legislating in Bhagwati Steel Rolling Mills v. CCE (2016). When the Parliament enacted the Citizenship Act, it was aware of laws limiting legal recognition of marriage to opposite-sex couples. Therefore, the gender-neutral language of the Citizenship Act does not recognise a foreign-origin sexual or gender minority spouse.^[25]

National Commission for Protection of Child Rights

The National Commission for Protection of Child Rights (NCPCR), a statutory body of the Union Government, intervened in the case opposing the extension of the right to adopt for sexual and gender minority individuals in India.^[10]

It argued that the current Legislative Policy does not envision same-sex adoptions. The Hindu Adoption and Maintenance Act of 1956 explicitly recognises opposite-sex couples. Therefore, it implies that the Act does not recognise adoption by same-sex couples. The Juvenile Justice Act of 2015 prohibits single men from adopting a girl child. Therefore, it would restrict the gay couple from adopting a girl child.^[10]

India ratified the United Nations Convention on the Rights of the Child and the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption on 11 December 1992 and 6 June 2003, respectively, and the treaties do not mention same-sex adoptions. Therefore, it can be inferred that it does not recognise same-sex adoptions.^[10]

Additionally, a 2015 report argues that studies showing no differences between same-sex and opposite-sex parents are flawed due to low sample sizes, selective choosing of the participants and biased responses by the participants. The report asserts that more rigorous studies show that children raised by parents in a same-sex relationship face greater emotional, developmental, and other difficulties than those raised by mothers and fathers, particularly by their married biological parents.^[181]

A 2015 US study found that emotional problems were twice as prevalent for children with same-sex parents than for opposite-sex parents. The study found the lowest risk of emotional problems in children living with both biological parents who were married.^[182] A longitudinal US study found that children of same-sex parents experienced an increased rate of depression and obesity as an adult.^[183]

Relying on the US Centers for Disease Control and Prevention report that gay and bisexual men are at high risk for sexually transmitted diseases,^[184] the NCPCR argued that gay and bisexual men could put their adopted children at risk.^[10]

Delhi Commission for Protection of Child Rights

The Delhi Commission for Protection of Child Rights (DCPCR), a statutory body of the Delhi Government led by the Aam Aadmi Party, intervened to support extending the right to marry and adopt for sexual and gender minority individuals in India.^[27]

It argued that the impact of legal recognition of same-sex marriage on gendered language in the current Legislative Policy does not present a serious concern. The Fundamental Rights conferred by the Constitution, which relies on gender-neutral terms such as "person" and "citizen", cannot be limited by the gendered language of the Statutes. The State has legal obligations to ensure non-discrimination of transgender people in matters including succession under the Transgender Persons Act of 2019 and NLSA v. UOI (2014). These mandates have warranted deviation from the literal interpretation of laws.^[27]

One of the reasons for gendered language is to ensure higher protection for women in heterosexual marriages, such as the Domestic Violence Act of 2005, the Dowry Prohibition Act of 1961 and sections granting additional grounds for divorce to women. Recognising same-sex marriage would not affect these provisions as they would still be relevant in opposite-sex marriages. Other conditions, such as maintenance, can be read down as gender-neutral.^[27]

The Indian Succession Act of 1925 governs the succession for the marriage registered under Special Marriage Act unless both parties are Hindu, Sikh, Buddhist or Jain. The Supreme Court reviewed the gendered language in the Hindu Minority and Guardianship Act of 1956 in Githa Hariharan v. Reserve Bank of India (1999). Similarly, the Hindu Succession Act of 1956, through legislative amendments and judicial decisions, has been made more gender-neutral.^[27]

Uncodified personal laws are not subject to judicial review. As uncodified personal laws govern guardianship for Muslims, Muslim same-sex spouses can rely on the Guardians and Wards Act of 1890 and seek the appointment of guardians through court on a case-to-case basis. Similarly, uncodified personal laws govern succession for Muslims. If Muslim same-sex couples register their marriage under Special Marriage Act, succession will be handled by Indian Succession Act.^[27]

Additionally, more than 50 countries allow same-sex couples to legally adopt children, including 2 in Asia — Israel and Lebanon — 22 in Europe, and 16 in the Americas. Constitutional Courts have agreed that there is no reason to deny adoption rights due to sexual orientation, including the South Africa in the National Coalition for Gay and Lesbian Equality v. Minister of Home Affairs (2000) and Du Toit v. Minister of Welfare and Population Department (2002), the United States in Florida Department v. Adoption of X.X.G (2010) and Obergefell v. Hodges (2015), the European Court of Human Rights in Salguiero Da Silva Mouta v. Portugal (1999) and E.B. v. France (2008) and Inter-American Court of Human Rights in Advisory Opinion (2018).^[27]

A Brazilian legal and psychoanalysis found that the relevant factors in determining whether a couple can be a good parent depend on the capacity to care for the child and the quality of the relationship between parent and child.^[185]

Multiple studies have shown that same-sex parents are no different from opposite-sex parents. An American Psychological Association report concluded that the home environment provided by same-sex parents to support and enable the psychosocial growth of their children is not different from the home environment provided by opposite-sex parents.^[186] A 2021 study analysed the administrative data from several population registers from the Netherlands from 2006 to 2018. The study included complete population coverage, reliable identification of same-sex families, verifiable educational outcomes and detailed measures of family dynamics over the children's life course. The study found that in a socio-political environment characterised by high levels of legislative or public support, children of same-sex parents achieved as well as children of opposite-sex parents.^[187]

As same-sex couples started adopting in 1995 but were allowed to marry only in 2013, a study found that the delay affected same-sex families negatively, including the health, education and other responsibilities toward their children.^[188]

The DCPCR also relied on the scientific consensus that sexual orientation and gender identity are established at least by adolescence.^[27] A Systematic Review and Meta-Analysis found that sexual orientation develops around the age of 13.^[189]

In the socio-legal environment where sexual and gender minority individuals do not have equal rights as cisgender heterosexual counterparts, acceptance, assimilation and legitimacy remains troubled.^[27] Despite the US Supreme Court ruling on same-sex marriage, the US State of Ohio refrained from enacting anti-discrimination laws, creating a less favourable legal environment for sexual and gender minority individuals than other states.  A study found that sexual and gender minority adolescents in Ohio were twice as likely to face bullying and harassment in school than their cisgender heterosexual counterparts.^[190]

Jamiat Ulema-e-Hind

Islamic organisation Jamiat Ulema-e-Hind and Telangana Markazi Shia Ulema Council intervened in the case opposing the extension of the right to marry and establish a family to sexual and gender minority individuals in India on socio-legal and religious grounds.^[28]

It argued that marriage, founded on established societal norms, cannot change following newly developed values emerging from a different worldview in a different paradigm. The concept of same-sex marriage attacks the family system rather than building a family through the process. Same-sex marriage recognition in certain countries, which achieved a certain threshold of social order in terms of education and social acceptance, cannot justify introducing the concept in India.^[28]

Moreover, a person identifying as a follower of a particular religion should believe in the foundational norms of the same. When a person fails to follow the religious norms, they are considered a sinner. A person who questions and seeks to amend well-established religious norms is not a follower of the religion. Therefore, there cannot be an imposition of a radical non-religious view on established, inseparable and core principles of religion.^[28]

According to Islam, marriage is a sacred contract between a cisman and ciswoman. The current sexual and gender minority rights movement originated from the Western sexual liberation movement, an atheistic movement, in the 1960s. Therefore, atheistic values should not be allowed to create any space within the religiously governed personal laws of the communities.^[28]

The Supreme Court held that personal laws have constitutional protection under Article 25 in Shayara Bano v. UOI (2017). The petitioner's request is against the established understanding of marriage in all personal laws.^[28]

The legislative intent to recognise marriage as a union of cisman and ciswoman is evident. The Supreme Court recognised the separation of power as a part of the basic structure of the Indian Constitution in Kesavananda Bharati v. State of Kerala (1973). The legislature enacts laws as per the social acceptability based on the prevailing values of a society. The Supreme Court held that judicial adjudication cannot be equated to law-making by legislators in Ashwani Kumar v. Union of India (2020).^[28]

Telangana Markazi Shia Ulema Council

Islamic organisation Telangana Markazi Shia Ulema Council intervened in the case opposing the extension of the right to marry and establish a family to sexual and gender minority individuals in India on socio-legal and religious grounds.^[29]

Statutory Interpretation

In addressing concerns about the courts' institutional capacity to interpret laws, Senior Advocate Singhvi referenced the UK House of Lords case, Ghaidan v. Godin-Mendoza, where statutory interpretation was separated from parliamentary intent and statutory text, including instances of unambiguous language, introducing an approach that prioritizes convention rights. He highlighted the court's authority to reinterpret legislation to align with convention rights within the constraints of the "thrust" of legislation and institutional capability of the court. Senior Advocate Singhvi highlighted that the underlying thrust of the Special Marriage Act in India is to allow individuals, irrespective of their religious beliefs, to enter into marriages, emphasizing the need for its interpretation to align with the Constitution of India.^[199]

Workability of law

Senior Advocate Kirpal addresses concerns raised by the Bench and the Union Government regarding the practicality and effectiveness in recognizing fundamental rights through judicial interpretation. He argued against accepting unworkability as a defence against judicial review of laws that infringe upon fundamental rights. Senior Advocate Kirpal emphasizes that accepting the workability defence would enable Parliament to intentionally draft laws in a way that protects them from judicial review, even if they violate fundamental rights. This precedent would undermine the Court's constitutional duty to protect the fundamental rights of citizens.^[198]

Personal law

On 18 April, Chief Justice D.Y. Chandrachud suggested steering clear of personal law and focusing on the Special Marriage Act for the arguments. Senior Advocate Guruswamy expressed concerns about the Hindu Marriage Act, to which the Chief Justice D.Y. Chandrachud responded that confining themselves to the Hindu Marriage Act may not be sufficient, considering other marriage acts applicable to different religious communities. Chief Justice D.Y. Chandrachud proposed an incremental approach to the interpretation of laws and societal evolution. Justice S.K. Kaul highlighted the importance of focusing on the core issue and suggested confining the discussion to the interpretation of the Special Marriage Act without delving into personal law issues.^[196]

Heteronormative framework

Senior Advocate Singhvi has rejected the argument that the State's definition of marriage, limited to a union between a man and a woman, can serve as a valid basis for denying the recognition of same-sex marriages, considering it as a circular and self-referential form of reasoning.^[197]

Senior Advocate Rohatgi emphasized the need to dismantle the heteronormative framework of marriage, acknowledging that intimate relationships are integral to the right to privacy. Drawing upon the Obergefell v Hodges (2015) case and other foreign precedents, he argued against imposing restrictions on consensual adult intimacy. Senior Advocate Rohatgi pleaded for recognizing the rights of sexual minorities to freely navigate public spaces, ensuring their right to marry and equal treatment in all aspects of life, including public employment and benefits.^[197]

Senior Advocate Luthra discussed an Austrian legal case that invalidated the distinction between marriage and registered partnerships for both same-sex and opposite-sex couples. She emphasized that although these institutions granted similar rights, they were inherently unequal due to discrimination based on sexual orientation. Emphasizing the Constitutional principles of equality and non-discrimination, she argued for the recognition of marriages of couples from sexual and gender minority communities.^[198]

Senior Advocate Kirpal contested the Union Government's assertion that marriage between sexual and gender minority individuals undermine the institution of marriage. He argued that in a marriage-centric society like India, excluding sexual and gender minority individuals from marriage leads to lavender marriages, trapping gay men and lesbian women in unhappy and disingenuous relationships. He further highlighted the potential harm caused when a gay man deceives a heterosexual woman into marriage. Senior Advocate Kirpal emphasized that these situations are more detrimental to marriage. Additionally, he highlighted that granting sexual and gender minority individuals the right to marry would not infringe upon the rights of heterosexual individuals.^[198]

Procreation

Senior Advocate Rohatgi argued that procreation, which encompasses diverse methods like adoption, IVF, and surrogacy in contemporary times, is integral to human dignity and is protected under Article 21.^[197]

Senior Advocate Vishwanathan challenged the notion that the inability to procreate justifies denying the right to marry. He emphasized that marriage laws do not impose an upper age limit, allowing individuals beyond reproductive capacity to enter into marriage. Additionally, He stressed that the ability or intention to have children is not a prerequisite for marriage. He argued that procreation is a secondary aspect of marriage, rather than a fundamental requirement.^[199]

Expressing concerns about the Union Government's argument, Senior Advocate Vishwanathan highlighted the harmful consequences of denying the right to marry for sexual and gender minority individuals based on their inability to have children. He presented a hypothetical scenario illustrating the detrimental effects and the infringement on their security and rights. Justice S.R. Bhat cautioned against extreme possibilities and emphasized the importance of considering realistic situations. To support his point, Senior Advocate Vishwanathan cited instances of eugenics practices in other countries, underscoring the potential dangers. He also argued against the perception that marriage is solely for procreation, emphasizing its broader significance. Justice S.R. Bhat echoed this sentiment, stating that procreation should not be disproportionately emphasized in such a manner.^[199]

Parenthood

Senior Advocate Vishwanathan argued that there is no evidence to suggest that couples from sexual and gender minority communities are unable to provide the safety, welfare, and security that children require. Chief Justice D.Y Chandrachud acknowledged that even in traditional households, there can be instances of domestic violence and emphasized that absolutes do not exist.^[199]

Urban elitism

On 19 April, the government argued before the court that the concept of same-sex marriage was a "mere urban elitist view for the purpose of social acceptance."^[200]

As Senior Advocate Singhvi argued that sexual orientation is an innate characteristic, Chief Justice D.Y. Chandrachud observed that it counters the claim that sexual orientation might be elitist, urban-centric, or influenced by class bias. Chief Justice D.Y. Chandrachud further explained that an innate characteristic could exhibit class bias and remarked that its manifestations might be more prevalent in urban areas due to increased acceptability.^[197]

Senior Advocate Vishwanathan represented Zainab Patel, a trans woman petitioner disowned by her family. He highlighted that despite her experience of being forced to beg on the streets, Zainab Patel's resilience and determination propelled her to achieve the position of Director at KPMG. He criticized the Union Government for lacking compassion in labelling her as an urban elitist.^[197]

Senior Advocate Kothari, representing Akai Padmashan, a trans woman petitioner disowned by her family, highlighted that at 15 years old, Akai Padmashan faced homelessness and had to leave school. Noting Akai Padmashan's successful reintegration into mainstream society, Senior Advocate emphasized recognizing that these individuals often come from impoverished and working-class backgrounds. Senior Advocate Kothari criticized the Union Government for unjustly labelling their struggles as elitist concerns.^[197]

Senior Advocate Anand Grover rebutted the Union Government’s argument that relationship between sexual and gender minority individuals were ‘urban’ and ‘elitist’ ideas by presenting evidence of 10 court protection orders of sexual and gender minority individuals in India, all hailing from poor and rural backgrounds.^[198]

In response to the respondents' attempt to portray marriage between sexual and gender minority individuals as urban elitist concept. Senior Advocate Ramachandran, representing the lesbian couple Kajal and Bhawna, highlighted the insightful words of Justice Vivian Bose from 1956.^[199]

The Constitution also exists for the common man, for the poor and the humble, for those who have businesses at stake. For the butcher, the baker, and the candlestick maker.

— Justice Vivian Bose, Bidi Supply Company v. Union of India (1956)

Senior Advocate Ramachandran specifically highlighted Kajal's occupation as a baker, emphasizing that she embodies the very individuals Justice Vivian Bose had in mind. He further noted that Kajal, a Dalit woman from Muktsar in Punjab, and Bhavna, from Bahadurgarh in Haryana, belong to a backward caste, challenging the notion of an urban elite. He argued that the recognition of their marriage provides essential societal protection from their own unsupportive natal families.^[199]

Senior Advocate Vrinda Grover drew the Bench's attention to the violence and discrimination faced by sexual and gender minority individuals, particularly trans individuals, from their own families. She emphasized that trans persons are often compelled to suppress their identities in front of their natal families. In line with the arguments put forth by Senior Advocate Ramachandran, she asserted that recognizing their marriages is essential to provide them with the support and protection that their natal families have failed to provide.^[198]

Western influence

Senior Advocate Rohatgi countered the Union Government's claim that relationships between sexual and gender minority individuals were a Western influence. He emphasized the historical presence of homosexuality in Indian culture predating the imposition of Victorian morality by the British in the 1800s. Senior Advocate Rohatgi supported his argument with evidence from the Khajuraho temple carvings, which depict same-sex relationships existing in India for centuries.^[197] Senior Advocate Anand Grover further highlighted the respectful recognition of transgender individuals in ancient Indian scriptures. He attributed the negative attitudes towards them to British influence, which permeated our society. These evidence contradicts the notion that relationships between sexual and gender minority individuals are solely an imported concept.^[198]

Constitutional recognition

Senior Advocate Rohatgi argued against a mere amendment to the act without a clear declaration. He reasoned that relying solely on the interpretation of the act would leave it vulnerable to potential future amendments, which could lead to unfavorable outcomes. Consequently, he respectfully urged the court to issue a constitutional declaration that would explicitly recognize marriage for diverse groups, drawing parallels to the recognition already afforded to heterosexual couples.^[196]

Statutory recognition

Senior Advocate Rohatgi argued that declaration of constitutional recognition of right to marry would be symbolic and it is necessary to provide statutory recognition to exercise the right.^[197]

Senior Advocate Rohatgi began explaining potential ways the Special Marriage Act could be interpreted by the court, highlighting that if the court recognizes a constitutional right to marriage for sexual and gender minority couples, the Act, being subservient to the Indian Constitution, might be deemed unconstitutional due to its exclusive clauses. He stressed that his purpose in outlining these possible judicial interpretations is to protect the Act's constitutional validity.^[197]

Senior Advocate Singhvi contended that using legislative intent as a defense against an equality challenge is invalid, as it constitutes circular and self-referential reasoning. He cited the UK House of Lords case, Ghaidan v. Godin-Mendoza, to advocate for an interpretation of statutes that aligns with the constitution, emphasizing the significance of fundamental rights over legislative intent and statutory language. He highlighted that the underlying thrust of the Special Marriage Act in India is to allow individuals, irrespective of their religious beliefs, to enter into marriages, emphasizing the need for its interpretation to align with the Constitution of India.^[199]

Recognition of ancillary rights

On 18 April, Senior Advocate Guruswamy argued that merely recognizing the fundamental right to marry would not sufficiently address the practical aspects of life for sexual and gender minority individuals. She reasoned that in addition to the right to marry, there is a need for specific laws that enable them to access insurance, purchase or rent homes, open bank accounts, and engage in similar activities. Senior Advocate Guruswamy emphasized that if the Supreme Court fails to address these practical aspects in the present instance, the petitioners would be compelled to repeatedly approach the court for resolution on each individual aspect.^[196]

On 27 April, as Solicitor General Mehta firmly opposed recognising the marriage of couples from sexual and gender minority communities, Chief Justice D.Y. Chandrachud told Solicitor General Mehta to provide an alternative solution to accommodate the various rights available to married couples for same-sex couples. On 3 May, Solicitor General Mehta told the Bench that a committee would be formed under the Cabinet Secretary. The Bench noted that committee would require coordination with multiple ministries, and suggested the petitioners to submit a list of issues. Further, the Bench clarified that they would still be deciding the right to marry in the Case. The administrative measure of forming a committee is something that must take place regardless of how the case is decided.^[201]

Parenthood

Tahir Mahmood claimed that the children adopted by same-sex parents would suffer embarrassment in society.^[221] The retired judges argued that the psychological development of children adopted by same-sex parents would be affected due to the lack of "balanced parenthood".^[212] Kanav N. Sahgal pointed out that the scientific evidence suggests that same-sex parents are not different from opposite-sex parents.^[222]

Personal liberty

In response to the Jamiat-e-ulema-e-Hind's intervention application, Shahrukh Alam pointed out that some advocates in the Hijab Ban Case relied on freedom of expression and personal autonomy. They argued in good faith when they reasoned the identity should be constructed holistically without being demarcated into religious and secular spaces. She urged young people to reject the Jamiat-e-ulema-e-Hind argument that if you want to be different, do it in your own non-religious space.^[226]

Western influence

The retired judges claimed that those demanding the legal recognition of marriage between sexual and gender minority individuals lacked knowledge and regard for the civilisation and institution of marriage, and that the interest groups were trying to impose Western thoughts, philosophies and practices on Indian Society.^[212] Literary historian Ruth Vanita pointed out that Indian opponents arguing that marriage between sexual and gender minority individuals is against Indian culture were ironically borrowing the argument from Western opponents, who claimed that marriage between sexual and gender minority individuals is against Western culture.^[227]

Namma Pride

Bangalore-based sexual and gender minority community organisation Namma Pride and civil rights group Coalition for Sex Workers and Sexual Minorities Rights co-published an open letter responding to the affidavit filed by Union Government on 12 March 2023. The letter criticised the Union Government for disregarding its constitutional commitment to secure the rights of sexual and gender minority individuals in India and perpetuating discriminatory marriage laws. The letter called out the Union Government for the hostile statement that couples from sexual and gender minority communities and opposite-sex couples are distinct classes and that couples from sexual and gender minority communities are undeserving of equal treatment.^[230][231]

Sweekar

Sweekar— the Rainbow Parents is a group of parents of 400 sexual and gender minority children. They wrote an open letter to the Chief Justice of India urging him to consider marriage between sexual and gender minority individuals. They expressed their desire to see their children and our children-in-law find legal acceptance of their relationship. Noting that they are growing old and some will reach 80 years soon, they urged urgency in the matter.^[232]

Queerythm

Prijith P K, president of Thiruvananthapuram-based sexual and gender minority community organization Queerythm, accused Bharatiya Janata Party of filing a ‘homophobic’ counter-affidavit to cater to the social conservative voters for the upcoming elections at the cost of sexual and gender minority rights.^[233]

Bharatiya Janata Party

BJP is a right-wing national party. On 12 March 2023, the Union Government under the leadership of BJP opposed extending the right to marry to sexual and gender minority individuals in India in the Supreme Court.^[8][234] The BJP-led State Government of Assam, Gujarat and Madhya Pradesh interevened in the Case opposing the extension of the right to adopt for sexual and gender minority individuals in India.^[11][12]

On 19 December 2022, BJP Member of the Council of States Sushil Kumar Modi expressed his opposition to the Judicial Review of the Indian marriage laws. He told the Parliament, "India is a country of 1.4 billion people, and two judges cannot just sit in a room and decide on such a socially significant subject. Instead, there should be a debate in Parliament as well as the society at large".^[235][236]

On 23 April 2023, the Bar Council of India, under the chairmanship of BJP member Manan Kumar Mishra, passed a Resolution stating that the Supreme Court should defer the matter to the Parliament.^[237] The Resolution received wide condemnation, including from the Supreme Court Bar Association, which reminded the BCI that Supreme Court was duty-bound to hear the petitioner before deciding on adjudication or referring to the Parliament.^{[238][239][230]}

At least 11 of 21 retired judges, who wrote an open letter criticising the petitioners for attacking the root of the Indian family system, had worked for the BJP-led government in some capacity following their retirement.^[228]

Indian National Congress

Congress is a centre-to-centre-left national party. As some senior leaders dismissed the extension of the right to marry to sexual and gender minority individuals in India as an unimportant or alien issue for Congress to take an official position, and others shared only their personal views, Congress does not have an official stance on the extending the right to marry to sexual and gender minority individuals in India.^[240] The Congress-led State Government of Rajasthan interevened in the Case opposing the extension of the right to adopt for sexual and gender minority individuals in India.^[12]

Congress Member of the Council of States Abhishek Singhvi, who is a lead counsel for one of the petitioners, argued for judicial intervention. He said that the questions about the possible legislative approach are meaningless as the BJP-led Union Government vociferously opposed extending the right to marry to sexual and gender minority individuals in India.^[240]

Congress Member of the House of the People Shashi Tharoor said denying civil rights to same-sex partners is wrong and unjustifiable and should be remedied without delay. Noting the resistance from the majority, he suggested a two-stage process where the first step is a civil partnership, a contract that grants the legal rights of spouses to same-sex partners. After seeing the impact on Indian society, the Union Government might recognise same-sex marriage.^[240] 

Congress Member of the House of the People Manish Tewari said that following the decriminalisation of same-sex relations by the 5-judge Constitution Bench of the Supreme Court, legalisation of such relationships should be a natural corollary.^[240]

Trinamool Congress

Trinamool Congress is a centre-to-centre-right state party based in West Bengal, Tripura and Meghalaya. National general secretary Abhishek Banerjee endorsed legal recognition of marriage between sexual and gender minority individuals. A party spokesperson confirmed that it reflects the party's stance.^[241] Earlier, Mamata Banerjee, Chairperson of the party and Chief Minister of West Bengal refused to comment on marriage between sexual and gender minority individuals, reasoning that it is a sub judice matter.^[242]

Trinamool Congress Member of the Council of States Derek O’Brien, who introduced a private member's bill to recognise marriage equality, published an opinion highlighting the personal experiences of sexual and gender minority individuals in India facing discrimination and prejudice. He concluded by emphasizing that the fight for same-sex marriage is not just about legalizing a union, but about fighting for the dignity and equal rights of the sexual and gender minority community.^[243][244]

Trinamool Congress Member of the House of the People Mahua Moitra criticised the Bar Council of India for failing their oath by promoting popular sentiment over constitutional morality. She pointed out that despite 49 per cent of Indian Citizens being women, all the members of the Bar Council of India were men. She questioned the legitimacy of the Bar Council of India in claiming to express the sentiments of 99.9 per cent of Indians.^[245]

YSR Congress Party

YSR Congress Party is a centre-left state party based in Andhra Pradesh. The YSR Congress Party-led State Government of Andhra Pradesh interevened in the Case opposing the extension of the right to adopt for sexual and gender minority individuals in India.^[12]

Dravida Munnetra Kazhagam

DMK is a centre-left state party based in Tamil Nadu and Puducherry. On 8 May 2023, DMK organising secretary R S Bharathi said the party has not decided on the stance.^[243]

DMK Member of the House of the People Thamizhachi Thangapandian, who has been closely following the proceedings, offered her full support. She eagerly awaits a favourable judgement that would make India the first UN-recognised nation from Asia to do so, a massive victory for sexual and gender minority rights globally.^[246]

Communist Party of India (Marxist)

CPI(M) is a left-wing national party. Member of the Politburo Brinda Karat said CPI(M) supports the rights of same-sex partners to get legal recognition of their relationship as a marriage. She called for judicial intervention, as the BJP-led Union Government opposed extending the right to marry for sexual and gender minority individuals in India.^[240]

Biju Janata Dal

Biju Janata Dal is a centre-left state party based in Odisha. As of 8 May 2023, the Party does not have an official stance on the issue.^[243]

In sharing his personal opinion, Biju Janata Dal Member of the Council of States Prasanna Acharya argued that Indian society is not comparable to Western society and, therefore, what may be suitable for the latter may not be appropriate for the former and opposed marriage between sexual and gender minority individuals.^[243]

Nationalist Congress Party

Nationalist Congress Party is a centrist state party based in Maharashtra and Nagaland. As of 8 May 2023, NCP does not have an official stance on the issue.^[243]

On 1 April 2022, NCP Member of the House of the People Supriya Sule had introduced a private member’s bill in Parliament, to recognise same-sex marriages under the Special Marriage Act.^[247]

All India Anna Dravida Munnetra Kazhagam

AIADMK is a centre-left state party based in Tamil Nadu and Puducherry. As of 8 May 2023, the Party does not have an official stance on the issue.^[243]

On 8 May 2023, senior party leaders said that same-sex marriage is against Indian culture and raised concerns about the emotional impact on the adopted child of the same-sex couple.^[243]

Bharat Rashtra Samithi

Bharat Rashtra Samithi is a centrist state party based in Telangana. On 8 May 2023, BRS Member of the House of the People Nageshwar Rao said that opinion of state governments on same-sex marriage is irrelevant as they will abide by the Supreme Court's verdict.^[243]

Rashtriya Janata Dal

Rashtriya Janata Dal is a centre-left state party based in Bihar and Jharkhand. On 8 May 2023, RJD Vice-president Shivanand Tiwary said the party had not discussed the issue. RJD National Spokesperson Prof Subodh Kumar Mehta stated that commenting on a sub judice matter is against the ethos of the judiciary and refused to comment.^[243]

In sharing his personal opinion, RJD Vice-president Shivanand Tiwary criticized BJP's stance on same-sex marriage and supported the right of those with a same-sex sexual orientation to marry if they choose to, citing scientific evidence and examples from other countries where it is legal. He said that the recognition of same-sex marriage is next step following the decriminalisation of same-sex relations.^[243]

Communist Party of India

CPI is a left-wing state party based in Kerala, Manipur and Tamil Nadu. CPI was the first party to support legal recognition of marriage between sexual and gender minority individuals officially. On 15 March 2023, the party released a statement that criticised the BJP-led Union Government's position as a reflection of the Manuwadi worldview, which excludes and criminalises. The statement called on the Supreme Court to uphold the right and dignity of the sexual and gender minority community.^[241][248]

On 22 April 2023, CPI Member of the Council of States Binoy Viswam reiterated the party stands with the democratic rights of the sexual and gender minority community.^[241]

Lok Janshakti Party

Lok Janshakti Party is a state party based in Bihar. On 8 May 2023, Party Vice-president Arvind Kumar Bajpai said that part has not decided on their stance, but they are more likely to oppose it due to social and cultural values.^[243]

Aam Aadmi Party

Aam Aadmi Party is a centrist national party. Delhi Commission for Protection of Child Rights, a statutory body of the Delhi Government under the AAP leadership, intervened to support extending the right to marry and adopt for sexual and gender minority individuals.^[27]

Naga People's Front

Naga People's Front is a state party based in Manipur and Nagaland. On 11 May 2023, Küzholuzo Nienü, party leader and member of Nagaland Legislative Assembly, opposed same-sex marriage. He cautioned the Supreme Court that while society may have "grudgingly" accepted the ruling that decriminalized homosexuality, they would react in an "unsavoury" manner to the legalization of same-sex marriage,^[249]

All India Lawyers Association for Justice

The All India Lawyers Association for Justice criticised the Bar Council of India's resolution calling the Supreme Court to refer the matter to the Parliament as an endorsement of the doctrine of parliamentary supremacy. The association endorsed constitutional supremacy and Dr Ambedkar's constitutional morality. They expressed that excluding people based on sexual orientation and gender identity is unconstitutional.^[230]

Bar Council of India

The Bar Council of India, a statutory body that regulates the legal practice and legal education, claimed that more than 99.9 per cent of Indians opposed marriage between sexual and gender minority individuals and urged the Supreme Court to leave the matter to the Parliament.^[250] The fact-checking website Boomlive reported that the data does not support the BCI claim of over 99.9% against legal recognition of marriage between sexual and gender minority individuals.^[251] According to The Wire, Senior Advocate Manan Kumar Mishra, Chairperson of the BCI, joined the Bharatiya Janata Party in January 2014 and has been a vocal supporter.^[237]

Indian Psychiatric Society

On 9 April 2023, the Indian Psychiatric Society, a professional association for Indian psychiatrists affiliated with the World Psychiatric Association, issued a statement asserting that sexual and gender minority identities are natural variations within the range of human sexuality. Stating that there is no evidence to support the exclusion of sexual and gender minority individuals, the Society supported equal rights for sexual and gender minority individuals, including marriage and adoption. The Society cautioned that discrimination leads to mental health issues. The Society acknowledged that the children of same-sex parents might experience discrimination and stigma and urged the sensitize families, schools and communities to prevent stigma and discrimination.^[16][17][18]

Dr Alka Subramanyam, author of the statement and member of the executive council of the Society, said they reviewed scientific research conducted in countries like the United Kingdom, United States, Netherlands, and Taiwan, where same-sex marriage and adoption by couples from sexual and gender minority communities are recognised.^[17][18]

Supreme Court Bar Association

Supreme Court Bar Association criticised the Bar Council of India for their "inappropriate" resolution urging the Supreme Court to refer the matter to the Parliament. The Association asserted that the Supreme Court has to hear the petitions and decide whether the Court should adjudicate or refer to the Parliament. President of the Association Vikas Singh said the actions of the Bar Council of India were inappropriate and the proper way would be to intervene and argue the point.^[238][252]

Hinduism

RSS is a Hindu nationalist organisation and the ideological parent of Prime Minister Modi's Bharatiya Janata Party.^[234][260] On 14 March 2023, during the press conference at the end of Akhil Bharatiya Pratinidhi Sabha, RSS General Secretary Dattatreya Hosabale backed the BJP-led Union Government's opposition to the extension of the right to marry for sexual and gender minority individuals in India. He said marriage is an institution for the benefit of the family and society, not for physical and sexual enjoyment.^{[234][260][261]}

Samvardhinee Nyas, an affiliate of RSS, interviewed persons affiliated with eight branches of medicine ranging from Ayurveda to modern medicine and submitted its finding to support the Union Government's opposition. They claimed that 60% of medical professionals claimed homosexuality was a disorder, 23.58% claimed they had "treated" such persons and "now their life is just like normal people." They reported that 84.27% of the medical professionals opposed legal recognition of marriage between sexual and gender minority individuals, and 67% claimed same-sex parents could not raise their offspring.^[262]

On 6 January 2023, the United Hindu Front protested outside the court, decrying homosexuality as against Indian culture and insisting the Supreme Court should not hear the petitions. However, the Supreme Court continued with the hearing.^{[235][263][264]}

Shri Sanatam Dharm Pratinidhi Sabha and Akhil Bhartiya Sant Samiti sought to intervene as an opponent to extending the right to marry and establish a family to sexual and gender minority individuals in India. Shri Sanatam Dharm Pratinidhi Sabha relied on Manusmriti and Vedas to oppose the rights. Akhil Bhartiya Sant Samiti argued that the concept of same-sex marriage is going to attack the whole family system in India.^[13]

Islam

Khalid Saifullah Rahmani, General Secretary of the Muslim Personal Law Board, released a statement supporting the Union Government's opposition to extension of the right to marry for sexual and gender minority individuals in India and stated that the Board would try to become a party to the case if necessary. It said that the act of homosexuality and same-sex marriage is contrary to religion, moral values, and social traditions and is unacceptable, illegal and a crime.^[265]

On 1 April 2023, Mahmood Asad Madani representing the Jamiat Ulema-e-Hind sought to intervene as an opponent to extending the right to marry and establish a family to sexual and gender minority individuals in India. He noted that the sexual liberation movement, which he alleges of being an atheist movement, resulted in the acceptance of homosexuality. Therefore, it should not be allowed to infringe on the religiously governed personal laws.^[14] On 10 April 2023, Telangana Markazi Shia Ulema Council sought to intervene as an opponent to extending the right to marry and establish a family to sexual and gender minority individuals in India. They argued that legitimising same-sex marriage is exclusive to Western and unsuited to Indian society. Marriage is intertwined with religion and personal law. Therefore, it is critical to consider religious perspectives.^[266]

Mohammad Salim, Vice President of the Jamaat-e-Islami Hind, backed the Union Government's opposition to extension of the right to marry for sexual and gender minority individuals in India. He said that the organisation believes in fundamental rights and advocates for freedom and minority rights. However, freedom comes with moral responsibility, and no society can accept crimes, vices and anarchy in the name of freedom and personal liberty.^[267]

Christian

Syro-Malabar Catholic Church, a Kerala-based Eastern Catholic Church in full communion with Roman Catholic Church, raised concerns that recognising marriage between sexual and gender minority individuals would lead to demand for legalising paedophilia and bestiality. The Church stated that same-sex marriages are unnatural and do an injustice to the family system in India.^[268]

Law School Sexual and Gender Minority Collectives

Over 30 sexual and gender minority collectives from 36 law schools with more than 600 students condemned the Bar Council of India for the resolution. The students criticised the resolution as ignorant, harmful and antithetical to the Constitution. Expressing concerns about the Bar Council of India disregarding constitutional morality, they reminded them that Indian Constitution is a counterweight to majoritarianism, religious morality, and unjust public opinion.^[239][269]

Oral Arguments

Petitioners

Respondent

Intervenors

Supreme Court of India

High Court of Delhi