A blog post by Andy Garcia, Senior Associate
On March 13, 2023, the Supreme Court of India will hear arguments to determine whether the Special Marriage Act and Foreign Marriage Act violate the Indian Constitution because neither law recognizes same-sex marriages.Currently, in India, marriages are either governed by laws specific to certain religious groups or the Special Marriage Act, meant to recognize interfaith and secular marriages. These laws limit marriages only between a man and woman. As a result, same-sex couples in India are denied basic legal rights that are afforded to married heterosexual couples; inheriting property, ability to have a family via adoption, medical determinations, and pension plans.
While, India is the largest democratic country in the world, it is a 1.4 billion socially conservative populationwith a conservative Hindu controlled legislature that religiously opposes same-sex marriage. Nevertheless, separately, four same-sex couples seek to challenge both religious and secular marriage laws on the ground that the laws violate each couples’ “constitutional rights to equality, freedom of expression, and dignity.” In January of this year, the Supreme Court of India consolidated the four petitions and decided to take on the issue. The Court has given the Indian government until February 15, 2023 to provide a response to the couples’ petitions. It appears likely that the Indian government will oppose the petitions.
Based on prior precedent from the Supreme Court of India, some scholars argue that the couples have “’a really strong case’ from a constitutional perspective.” For instance, in 2014, the Court recognized non-binary and transgender identities as a third gender.  In Navtej Singh Jonar v. Union of India, the Court held unconstitutional section 377 of the India Penal Code which criminalized homosexual sex with a maximum sentence of ten years imprisonment. The Court, in Navtej Singh Jonar, stated that the Indian Constitution is a “living and organic document” that must be interpreted with a progressive eye to “combat the evils of inequality and injustice that try to creep into the society.” Therefore, “[t]he sexual autonomy of an individual to choose his/her sexual partner is an important pillar…of individual liberty.” When the majority attempts to limit an individual’s ability to exercise such a liberty, “the fundamental right of liberty of such an individual is abridged.” The Court’s progressive and expansive constitutional interpretation paves the way to the next possible step, recognition of same-sex marriages.
Since the Court’s judgment, both the Indian government and Rashtriya Swayamsevak Sangh, a Hindu nationalist group, have agreed with the high court’s ruling however, remain opposed to the recognition of same-sex marriage in the law. Nevertheless, despite the societal and governmental attitudes, Utkarsh Saxena, one of the individuals’ petitioning the high court, is glad to continue the constitutional fight. Hopefully the Court will continue its furthering protection of underrepresented groups, change societal norms and “move [the nation] from darkness to light, from bigotry to tolerance and from the winter of mere survival to the spring of life ― as the herald of a New India ― to a more inclusive society.”
 Shruti Mahajan, How Same-Sex Marriage Could Become Legal in India, Time (Jan. 17, 2023, 11:30 PM), https://time.com/6247937/india-same-sex-marriage-supreme-court/.
 Sarthak Gupta, India Supreme Court consolidates high court same-sex marriage petitions, Jurist (Jan 06, 2023 09:13 AM), https://www.jurist.org/news/2023/01/india-supreme-court-transfers-high-court-same-sex-marriage-petitions-to-itself/.
 Sheikh Saaliq, Indian Couples Begin Legal Battle for Same-Sex Marriage, The Diplomat (Feb. 04, 2023), https://thediplomat.com/2023/02/indian-couples-begin-legal-battle-for-same-sex-marraige/.
 Shyla Mishra, Commentary: India must secure LGBTQ+ community’s human rights, The Ithacan (Jan 31, 2023), https://theithacan.org/opinion/commentary-india-must-secure-lgbtq-communitys-human-rights/.
 Arpan Chaturvedi & Rupam Jain, Gay couples in India ask Supreme Court to legalise same-sex marriage, Reuters (Dec. 19, 2022 1:54 AM), https://www.reuters.com/world/india/gay-couples-india-ask-supreme-court-legalise-same-sex-marriage-2022-12-19/.
 Constantino Xavier, Interpreting India at the Summit for Democracy, Brookings (Dec. 06, 2021), https://www.brookings.edu/blog/order-from-chaos/2021/12/06/interpreting-india-at-the-summit-for-democracy/.
 Chaturvedi & Jain, supra note 7.
 Saaliq, supra note 3.
 Gupta, supra note 2.
 Mishra, supra note 6.
 See generally Saaliq, supra note 3 (parliamentarian of the majority party stating same-sex marriages would cause “complete havoc with the delicate balance of personal laws in the country.” and “against the cultural ethos of the country”); Chaturvedi & Jain supra note 7 (India’s law ministry referred to marriage as “a solemn institution between a biological man and a biological woman.”).
 Mariana Qu, Harvard Alum Petitions Supreme Court of India to Legalize Same-Sex Marriage, Harvard Crimson (Feb. 10, 2023), https://www.thecrimson.com/article/2023/2/10/alum-lgbtq-supreme-court-india/.
 Saaliq, supra note 3.
 Navtej Singh Johar v. Union of India, (2018) 76 SCC 1, 157 (India).
 Id. at 142-43.
 Mahajan, supra note 1.
 Qu, supra note 15.
 Navtej Singh Johar, 76 SCC at 154.