Some closed doors & other open opportunities

Following the Supreme Court’s historic verdict in Navtej Singh Johar vs Union of India (2018), which decriminalised private, consensual, and adult same-sex conduct nationwide, a review petition was filed to reconsider the judgement and expand the scope of rights available to the queer community. The petition specifically sought the legal recognition of same-sex marriages, the right to adopt, access to IVF and surrogacy services, and the ability to serve openly in the army, navy, and air force. However, the review petition was dismissed in April 2019. Five years later, history seems to have repeated itself. On January 9, 2025, the Supreme Court dismissed review petitions seeking a reconsideration of its 2023 judgement in Supriyo vs Union of India, where the court declined to grant legal recognition to queer marriages.

It is important to recognise that the Navtej Singh Johar judgement was a review of an earlier ruling — Suresh Kumar Koushal vs Naz Foundation (2012) — which had upheld a colonial-era penal ban on homosexual conduct. The court is no stranger to revisiting its own decisions on matters of queer rights. Moreover, the power of the Supreme Court to review its judgements is constitutionally safeguarded under Article 137, which states: “Subject to the provisions of any law made by Parliament or any rules made under Article 145, the Supreme Court shall have the power to review any judgement pronounced or order made by it.” Despite this constitutional power, the success rate for review petitions is exceptionally low. Though no official studies have been conducted, reports suggest that less than 0.1% of review petitions ever result in a change in the Court’s decision. Given this, one must ask: where does this leave the queer community, and what avenues remain for advancing their rights?

A legal dead end?

When reviewing and subsequently dismissing the petitions related to the Supriyo case, a composition of five judges, including Justice P S Narasimha, who had authored the majority opinion in Supriyo, unanimously held that the court’s majority verdict was “in accordance with law.” This was despite one of the review petitions emphasising that what the petitioners sought was a reconsideration of the court’s opinion based on a mischaracterisation of their original request.

The review petition argued that the court had addressed an abstract question of whether there is a “right to marry,” which was never explicitly raised, while failing to address the core issue: whether queer couples could be excluded from the socio-legal regime of marriage merely because of their sexual identity.

Unfortunately, the merits of this argument were never addressed in the dismissal order.

The final recourse for petitioners would be to file a curative petition, but its likelihood of success is even more limited, considering that nine judges, including a former Chief Justice of India, have already deliberated on this matter and reached the same conclusion — that the Supreme Court does not have the authority to recognise queer marriages legally.

Another potential avenue could involve directing the matter to a larger constitutional bench of at least seven judges, as the bench hearing Supriyo consisted of only five. However, this would be the prerogative of the sitting Chief Justice and would only be considered if there is significant ambiguity in the law’s interpretation — a scenario that seems unlikely. Thus, the legal avenues for reviewing the Supriyo decision appear to be realistically exhausted.

The broader implications

Senior advocate Jayna Kothari, in her review of the Supriyo verdict, highlights the far-reaching consequences of this decision, which extends beyond the queer community. By ruling that the right to marry is not a fundamental right protected under the Constitution, the verdict opens the door for the government to impose restrictions on non-queer people’s right to marry in ways that were previously thought to be constitutionally protected. This could affect judicial decisions on the constitutionality of various anti-conversion laws or the newly enacted Uniform Civil Code in Uttarakhand, which criminalises the non-registration of live-in relationships.

Although the Supriyo bench held that the right to form intimate relationships without state interference is a fundamental right, it refrained from declaring the right to marry itself as fundamental. This omission could enable the state to impose restrictions on live-in relationships and other intimate partnerships, advancing a state-defined notion of what constitutes a “legitimate” relationship.

As such, the Supriyo verdict could allow the state to regulate intimate relationships in ways that are not constitutionally protected, particularly those linked to marriage, which the state can regulate under statutory law. This regulatory power could exclude entire groups, including the queer community, despite constitutional prohibitions on discrimination based on sexual orientation, gender identity, or other protected categories.

The larger picture

The implications of the dismissal of these review petitions extend beyond the queer community and are critical for the future of constitutional family law in India. The recent developments in Uttarakhand, where the state has implemented restrictive measures against live-in relationships, highlight the state’s increasing reach in controlling intimate choices.

In this context, the queer community must consider forging strategic alliances with activist groups and political parties that can advocate for their rights alongside broader civil liberties issues, including the rights of live-in and interfaith heterosexual couples and other marginalised groups.

(The author is a communications manager at Nyaaya, the Vidhi Centre for Legal Policy and can be reached at [e-mail])