Same Sex Marriage: On Thursday, the Supreme Court decided to review a series of petitions asking for a reexamination of its October 17 ruling, which denied same-sex couples legal recognition and stated that only state and federal legislatures could formally recognise a couple’s marriage.
Legal Advocacy Begins
Before Chief Justice of India Dhananjaya Y Chandrachud, senior attorney Mukul Rohatgi brought up the issue and asked the CJI to make sure the review petition is heard by five judges on November 28, which is the tentative date set by the court registry. When Rohatgi made the request, there were also a number of other solicitors present who had previously appeared in the case. “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.
Open Court Request
In response, the CJI stated that he still needed to review the review petitions and that the attorneys’ request for an open court hearing would be duly taken into account. Through circulation in their chambers, a review petition is brought before the same group of judges and is typically decided without a public hearing. Oral arguments and an open court hearing may be permitted if the judges determine that the review plea has some merit.
Adoption Rights Denied
Justice S Ravindra Bhat, one of the five judges on the same-sex marriage bench, retired on October 20. As a result, the CJI will need to appoint a new judge to the bench in order to consider the review petitions. As the master of the roster, the CJI is responsible for setting the date for the judges’ chambers review plea consideration. The October 17 ruling, which was signed by a 3-2 majority, rejected the idea that same-sex marriage should be allowed legally. It also rejected the idea that civil unions should have constitutional protection and queer couples should be able to adopt children. The ruling noted that forcing the government to recognise or legalise certain types of unions would go against the theory of separation of powers and might have unintended consequences.
Key Ruling Impact
Justices Bhat, Hima Kohli, and PS Narasimha held that the 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. CJI Chandrachud and justice Sanjay Kishan Kaul ruled in favour of civil union recognition and adoption rights, which is widely regarded as the first step towards granting full marriage equality.
LGBTQIA+ Rights Advocate
The first review petition in the case was filed on November 1 by US-based attorney Udit Sood, one of 52 petitioners seeking marriage equality in India. He claimed that the majority judgement of the court was “manifestly unjust” and “self-contradictory,” failing to protect the rights of the LGBTQIA+ community despite acknowledging its struggles. “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.
Failure to Follow Through
In his petition, Sood highlighted specific passages from the ruling by Justice Bhat, claiming that despite the ruling’s extensive discussion of the “unjust discriminatory consequences” and the LGBTQ+ community’s fundamental rights being violated, it did not follow through and outlaw the discrimination. Sood described the contradiction as an error that was clearly visible on the record and claimed that the Supreme Court had effectively “abdicated the duty” to rectify a mistake after it had been acknowledged.
Best Wishes Contradiction
“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, arguing against the consensus that the government ought to act appropriately to shield queer couples from discrimination and eliminate its stigma.
Constitutional Authority
Supriya Chakravarty and Abhay Dang also petitioned the top court almost a week later, asking for a review of the October 17 ruling. They maintained that constitutional courts have the authority to examine statutes to make sure they uphold constitutional principles and that they are not dependent on legislative action to recognise same-sex marriage.
Statutory Regime Challenge
“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. In a unanimous decision on October 17, the highest court determined that the freedom to marry was not a fundamental right and that it was not within the court’s jurisdiction to direct the legislature to create new legal guidelines that would define same-sex unions and queer relationships.
SMA Provisions Stand
The CJI, along with justices Kaul, Bhat, and Narasimha, separately authored the judgements. They declined to read down or annul the provisions of the Special Marriage Act (SMA), which would have included non-heterosexual couples under its protection. Though they agreed that queerness is not a “urban, elitist concept,” the judges disagreed on how far a court should go and demanded that the State provide protection for these couples.
State Intervention Varies
The other three judges disagreed with the CJI and Justice Kaul, who argued that gay couples’ right to form a union is a constitutionally guaranteed right and that the State must recognise these civil unions and provide them with benefits under the law, such as adoption rights.
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