Same-sex marriage: Review petitioners want open court hearing, say SC misunderstood case

A review petition has been filed in the Supreme Court against the same-sex marriage judgement by lawyer Utkarsh Saxena and his partner Ananya Koti, who were the petitioners in the previous case too, in which a five-judge SC bench had refused to grant legal recognition for same sex marriages on 17 October.

The plea was mentioned before Chief Justice DY Chandrachud on Thursday, and he said he would consider if it could be held in an open court.

On behalf of the review petitioners, senior advocate Mukul Rohatgi told the court that the tentative date for listing of the case is 28 November, and it should not be deleted from the list. He also mentioned that the petitioners have requested an open court hearing. “Lives of large numbers of people depend on this,” Rohatgi said.

The CJI, however, said he hadn’t examined the case yet. He also asked the petitioners to complete all the administrative formalities for listing of the case. “Circulate it, I haven’t examined it. Get all the administrative formalities done,” the CJI said.

Multiple petitions have been filed before the court, including one by the lead petitioners in the matter, Supriyo Chakravarty and Abhay Dang, seeking a review of the court’s five-judge verdict which refused to grant legal recognition for same-sex unions, saying the issue was for Parliament to decide.

"By refusing to grant queer couples access, on equal terms, to one of the most significant social institutions in our society — both intrinsically, and as a gateway to other crucial rights — the Court resiles from the promises of equal moral membership that it made to queer individuals in Navtej Johar vs Union of India, and entrenches once again a doctrine of 'separate and unequal'," the most recent review petition states.

Another review petition was filed earlier by four petitioners (Udit Sood, Saatvic, Lakshmi Manoharan and Gagandeep Paul), faulting the judgment for not affording any legal protection to queer couples despite acknowledging the discrimination faced by them. This amounts to abdication of the Court's duty to uphold and protect fundamental rights, they had argued.

The review petitioners pointed out that the majority judgment fundamentally mischaracterises the petitioners’ case. According to them, it answers a question that was never asked — whether there exists an abstract “right to marry” — but fails to answer the question that was actually asked, which is whether queer couples can be excluded from a legal regime purely on the basis of their sexual orientation.

The petitioners got no relief despite succeeding in their petition under Article 32, with the top court concurring that the Constitution mandates recognition of their relationship. Their petition had highlighted that the existing statutory regime governing marriage discriminated against them by exclusion.

The review petitions also argue that the majority opinion has made a crucial factual error by holding that the Special Marriage Act (SMA) is limited to couples “belonging to different faiths”. The SMA is open to all couples who do not wish to avail their respective personal laws in order to get married, the petitioners argue. The gender-neutral reading of certain provisions of the SMA is well within the ambit of the Court, the petitioners argue.

The majority opinion of the court does concede that the effect of SMA’s exclusionary provisions is unconstitutionally discriminatory. However, it leaves the remedy at the discretion of an executive committee, stating that its resolution is too legally complex for the judiciary to interpret.

The judgement also erred in denying adoption rights to same sex couples, the review petitioners state. The court denied queer couples the right to adopt because queer marriages are not recognised — as the adoption regulations presuppose the existence of a valid marriage.

The Supreme Court had refused to grant legal status to same-sex couples to enter into marriages or have civil unions and refused to amend the provisions in the SMA as requested by the petitioners. The court said that Parliament should decide on the issue as the top court cannot make laws, but can only interpret it. 

For 10 days, The five-judge Supreme Court bench — comprising CJI DY Chandrachud, and justices Sanjay Kishan Kaul, Ravindra Bhat, Hima Kohli and PS Narasimha — heard a batch of 20 petitions arguing for Constitutional recognition of same-sex marriage. The case was reserved for judgement on 11 May. The lead petition was filed by Hyderabad-based Supriyo Chakraborty and Abhay Dang, who have been living together.

During the hearing, the Constitution bench rendered four judgements written by Chandrachud, Kaul, Bhat and Narasimha. The majority opinion was delivered by Bhat, Kohli and Narasimha, while Narasimha wrote a separate, but concurring opinion. Chandrachud and Kaul delivered separate dissenting judgments.

All the judges said same-sex couples cannot demand the right to marry as a fundamental right, and they also refused to strike down the SMA and the Foreign Marriage Act for not recognising queer marriages. 

However, the bench asked the Union and state governments to ensure that the LGBTQ+ community is not discriminated against on the basis of their sexual orientation, and queer individuals are not refused access to any goods or services.