Supreme Court agrees to consider review petitions on same-sex marriage verdict

By a 3-2 majority, the Oct 17 judgment had refused to accord legal sanction to same-sex marriage, & also declined to grant constitutional protection to civil unions and adoption rights for queer couples

The Supreme Court on Thursday agreed to consider on November 28 a bundle of petition seeking a reconsideration of its October 17 judgment that had refused to grant legal recognition to same-sex couples and said only Parliament and state legislatures can validate their marital unions.

The top court’s ruling unanimously held that the right to marry was not a fundamental right. (HT file photo)

Senior counsel Mukul Rohatgi mentioned the matter before Chief Justice of India Dhananjaya Y Chandrachud, requesting the CJI to ensure that the review petition comes up for consideration before five judges on November 28 – the tentative date assigned by the court registry.

Several other lawyers, who had earlier appeared in the matter, were also in attendance when Rohatgi made the request.

“We have also sought an open court hearing. It is tentatively listed on November 28. Let it not be deleted. Apart from this, majority or minority, both views have held that there is a discrimination (against LGBTQ+ couples). If there is discrimination, there also has to be a remedy. This is why we have pressed for an open court hearing,” Rohatgi submitted.

Responding, the CJI said that he was still to go through the review petitions and that the lawyers’ plea for an open court hearing would be considered appropriately.

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 S Ravindra Bhat retired on October 20, which means the CJI will have to add a new judge to the bench for considering the review petitions. It is for the CJI, as the master of the roster, to assign a date for considering the review plea inside judges’ chambers.

By a 3-2 majority, the October 17 judgment had refused to accord legal sanction to same-sex marriage, and 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 CJI 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 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.

Udit Sood, a US-based lawyer who was among the 52 petitioners seeking marriage equality in India, filed the first review petition in the matter on November 1, 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 filed through Karanjawala & Co.

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.

Almost a week later, Supriya Chakravarty and Abhay Dang also moved the top court seeking a review of the October 17 judgment. They argued that constitutional courts are empowered to review statutory law to ensure its conformity with constitutional values and that such courts do not need to wait for the legislature to enact or amend laws to recognise same-sex marriage.

“There is a right to a relationship, a right to union, and a right to civil union under the Constitution, yet the majority decision fails to secure any legal status for such rights..The bench unanimously finds that the exclusion of queer couples from the existing statutory regime is discriminatory, yet the majority decision grants no relief,” complained the petition.

The top court’s ruling on October 17 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.