A petition has been filed in the Supreme Court seeking a review of a Constitution Bench’s majority judgment which had held that only the legislature can recognise or regulate queer marriage.
The review plea was filed by Udit Sood, one of the original petitioners who had appeared before the Constitution Bench headed by Chief Justice of India D.Y. Chandrachud.
The Constitution Bench had, in its judgment, reasoned that since there was no fundamental or unqualified right to marry, the courts cannot intervene.
The five-judge Bench had even failed to reach a consensus on providing long-abiding relationships between queer couples the status of a legally recognised “civil union”. This was despite all five judges on the Bench unanimously accepting that it was time to end discrimination against same-sex couples.
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Chief Justice Chandrachud, who became a minority on the Bench with Justice Sanjay Kishan Kaul, had declared that queer people have a fundamental right to form relationships and the State was obligated to recognise and grant legal status to such unions, so that same-sex couples could avail the material benefits provided under the law.
On the other hand, Justices S.R. Bhat and Hima Kohli, in their opinion backed by a separate one by Justice P.S. Narasimha to form the majority judgment of the Bench, had held that “an entitlement to legal recognition of the right to union — akin to marriage or civil union, or conferring legal status upon the parties to the relationship — can be only through enacted law”.
The Bench had also refused to tinker with the Special Marriage Act. Chief Justice Chandrachud said it was within the legislative domain to rid the 1954 Act of its “institutional limitations”.
Justice Bhat had found the petitioners’ plea to read various provisions of the Act in a gender-neutral manner, so as to enable same-sex marriage, “unsustainable”.
The majority view had held that the apex court judgment decriminalising homosexuality in 2018 did not extend to legal recognition of queer unions.