SC agrees to consider petition to hear same-sex marriage review in open court

The review petition said the Supreme Court verdict compelled queer couples, who wished the joys of a real family, to remain in the closet and lead dishonest lives

Updated - November 24, 2023 07:46 am IST

Published - November 23, 2023 12:43 pm IST - NEW DELHI

A LGBTQ+ rights activist leaves the premises of the Supreme Court after the verdict on same-sex marriages on October 17, 2023. File

A LGBTQ+ rights activist leaves the premises of the Supreme Court after the verdict on same-sex marriages on October 17, 2023. File | Photo Credit: Shashi Shekhar Kashyap

The Supreme Court on Thursday agreed to look into a request for an open court hearing of a petition seeking a review of its majority judgment in October refusing to legalise same-sex marriage.

Appearing before a Bench headed by Chief Justice of India D.Y. Chandrachud, senior advocates Mukul Rohatgi, Menaka Guruswamy, advocates Arundhati Katju and Karuna Nundy urged the court to post the review in open court rather than by the usual way of circulation in judges’ chambers.

Also Read | Why did the Supreme Court not allow same-sex marriage? | Explained 

Justice S. Ravindra Bhat, who headed the majority opinion, has already retired. Justice Sanjay Kishan Kaul, who was part of the minority opinion, is set to retire on December 25, 2023.

The review petition said the top court verdict compelled queer couples, who wished the joys of a real family, to remain in the closet and lead dishonest lives.

The judgment had acknowledged that queer partners suffered from the indignity of discrimination in their everyday lives, but denied them any judicial relief, choosing to leave the community at the mercy of government policy and legislative wisdom.

‘Parliament ideal forum’

On October 17, the Supreme Court had said it did not want to leave the constraints of judicial power to encroach into the legislative domain of the Parliament. It said the Parliament was the ideal forum to debate and pass laws, or not, on the question of conferring legal status to same-sex marriage.

A majority of the three judges on the Constitution Bench had disagreed with the view of Chief Justice Chandrachud that the government should at least grant a ‘civil union’ status to same-sex partners, saying such a concept was not backed by statutory law.

Also Read |Law and custom: On the Supreme Court’s verdict on same-sex marriage

The review petition has contended that the majority judgment contradicts itself in several fronts.

For one, the Constitution Bench had said the Parliament conferred social status for marriage as an institution under the Special Marriage Act of 1954. But, despite this finding, the Bench had finally settled on the opposite premise that the terms of marriage were largely set independent of the state, and the status of marriage was not conferred by the state.

The petitioners had urged the Constitution Bench to include same-sex marriage within the ambit of the 1954 Act.

‘A fundamental right’

The review petition emphasised that the right to marry was a fundamental right.

“No contract or forceful state action can curtail an adult’s fundamental right to marry,” the review petition has said.

The review plea pointed out that the 1954 Act excluded same-sex marriages from its ambit at a period when homosexuality was a “vice” and a crime.

The petition noted that it was the Supreme Court itself which had decriminalised homosexuality. The majority judgment, the plea said, has fallen short of the constitutional obligations of the top court towards queer couples.

It said ideals of equal participation, dignity, fraternity remained fallacious for the queer community unless the judicially intervenes to review its own judgment.

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