The Supreme Court of India has agreed to reconsider its October 17 judgment on same-sex marriage, which had declined legal recognition to same-sex couples. This decision comes after several petitioners, including Udit Sood and a US-based lawyer, filed review petitions, arguing that the court’s majority ruling was “manifestly unjust” and “self-contradictory.”
Also read- Review Petition Filed Against Supreme Court’s Decision On Same-Sex Marriage (lawchakra.in)
Senior counsel Mukul Rohatgi, representing the petitioners, requested Chief Justice of India Dhananjaya Y Chandrachud to ensure that the review petition is considered by a five-judge bench on November 28, the tentative date assigned by the court registry. Rohatgi emphasized the need for an open court hearing, stating,
“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 discrimination (against LGBTQ+ couples). If there is discrimination, there also has to be a remedy.”
The review petitions challenge the majority judgment’s refusal to accord legal sanction to same-sex marriage and its denial of constitutional protection to civil unions and adoption rights for queer couples. The petitioners argue that the judgment, despite acknowledging discrimination against the LGBTQIA+ community, failed to provide a remedy. Udit Sood, in his petition, stated,
“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.”
Also read- Supreme Court Directs End To Queer Discrimination: A Comprehensive Overview (lawchakra.in)
Another set of petitioners, including lawyer Utkarsh Saxena and his partner Ananya Koti, faulted the judgment for not affording legal protection to queer couples. They contend that the majority judgment fundamentally mischaracterizes their case by addressing an abstract “right to marry” instead of focusing on whether queer couples can be excluded from a legal regime based on their sexual orientation.
The petitioners also argue that the Special Marriage Act (SMA) should be read in a gender-neutral manner, which is consistent with its purpose. They assert that once a court finds a statute to be unconstitutionally discriminatory, it cannot delegate the task of remedying discrimination to the executive.
The Supreme Court’s ruling on October 17 had 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 characterize same-sex marriages and queer relationships through a new instrument of law. However, the court had agreed that the Union of India should constitute a committee to examine the rights and entitlements of persons in queer unions.
This reconsideration by the Supreme Court marks a critical juncture in the ongoing debate over the legal recognition of same-sex relationships in India. The outcome of the review petitions could have far-reaching implications for the LGBTQIA+ community and the interpretation of rights and equality under the Indian Constitution.
