Petition urges court to review verdict on same-sex marriage
A review petition comes up before the same composition of judges through circulation in their chambers and is mostly decided without an open court hearing
A fortnight after the Supreme Court refused to grant legal recognition to same-sex couples and said only Parliament and state legislatures can validate their marital unions, one of the petitioners in the case on Wednesday approached the top court with a plea to review the October 17 judgment.
Udit Sood, a US-based lawyer who was among the 52 petitioners seeking marriage equality in India, filed a review petition, complaining that the majority judgment of the court was “manifestly unjust” and “self-contradictory” in not protecting the rights of the LGBTQIA+ community despite acknowledging its travails.
“The majority ruling is self-contradictory, facially erroneous and deeply unjust. The majority found that queer Indians endure severe discrimination at the hands of the State, declared that discrimination must be prohibited, and then did not take the logical next step of enjoining the discrimination,” Sood said in his petition.
By a 3-2 majority, the October 17 judgment also declined to grant constitutional protection to civil unions and adoption rights for queer couples, noting that mandating the State to grant recognition or legal status to some unions will violate the doctrine of separation of powers and could lead to unforeseeable consequences.
While Chief Justice of India (CJI) Dhananjaya Y Chandrachud and justice Sanjay Kishan Kaul ruled in favour of recognition of civil unions — considered the world over as the first step towards granting full marriage equality — and adoption rights, justices S Ravindra Bhat, Hima Kohli and PS Narasimha held that right to a civil union cannot be assigned the status of a constitutionally protected right when the right to marry has not been given the same status.
A review petition comes up before the same composition of judges through circulation in their chambers and is mostly decided without an open court hearing. However, if the judges find some merit in the review plea, they can allow an open court hearing and oral arguments.
Of the five judges on the same-sex marriage bench, justice Bhat retired on October 20, which means the CJI will have to add a new judge to the bench for considering Sood’s review petition. It is for the CJI, as the master of the roster, to assign a date for considering the review plea inside judges’ chambers.
In his petition, Sood picked out parts of the judgment authored by justice Bhat, complaining that though the judgment extensively wrote on “unjust discriminatory consequences” and violation of the fundamental rights of the LGBTQ+ community, it failed to take the logical next step of prohibiting the discrimination.
Terming the contradiction an error apparent on the face of the record, Sood said that it was nothing short of “abdication of the duty” by the Supreme Court to not correct a wrong after having acknowledged it.
“Our Constitution primarily tasks this Hon’ble court — not the respondents (Centre) — with upholding fundamental rights. To find that the petitioners are enduring discrimination, but then turn them away with best wishes for the future, conforms neither with this Hon’ble court’s constitutional obligation towards queer Indians nor with the separation of power contemplated in our Constitution ,” said his petition, disputing the majority view that the government should take appropriate steps to remove the stigma of discrimination and protect queer couples.
Sood added that the majority judgment is also self-contradictory in its understanding of “marriage” because it repeatedly fluctuates between whether marriage is an institution largely dependent on its recognition by the State or if it’s an institution independent of the State.
“The majority judgment overlooks that marriage, at its core, is an enforceable social contract. The right to so contract is available to anyone capable of consenting. Adults of any faith — or no faith — may engage in it. No one group of people may define for another what ‘marriage’ means. No contract, nor forceful State action like imprisonment, may curtail an adult’s fundamental right to marry,” the plea argued.
It further said that the majority judgment is manifestly unjust because it countenances animus-motivated depravation of the petitioners’ fundamental rights, allowing the legislature to treat homosexuals as “sub-par humans”.
“India was an original signatory to the Universal Declaration of Human Rights. We helped write the declaration, and in its Article 16, we recognised marriage and the right to found a family as basic human rights. To now say that there is no such constitutional right for anyone (gay or straight) places us embarrassingly out of sync with the rest of the civilised world,” Sood said.
The top court’s ruling unanimously held that the right to marry was not a fundamental right, and that it was beyond the remit of courts to issue a positive direction to the legislature to characterise same-sex marriages and queer relationships through a new instrument of law.
The judgments — separately authored by the CJI, and justices Kaul, Bhat and Narasimha — also refused to annul or read down the provisions of the Special Marriage Act (SMA) to include non-heterosexual couples within its fold.
The judges, however, were divided in deciding how far a court can go despite acknowledging that queerness is not an “urban, elitist concept” and required the State to ascertain protection to such couples.
While the CJI and justice Kaul maintained that the right to enter into a union by queer couples is a constitutionally protected right and that the State has an obligation to recognise such civil unions and grant them benefit under law, including adoption rights, the other three judges overruled this view.
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