Supreme Court to hear review petitions against gay marriage verdict on July 10 | Latest News India

NEW DELHI: The Supreme Court will hear on July 10 a batch of petitions seeking a review of its October 17 ruling that denied legal recognition to same-sex couples and said only Parliament and state legislatures can validate their marital unions.

The petitions will be heard by a five-judge bench headed by Chief Justice of India Dhananjaya Y Chandrachud in the chambers of the judges. The bench will also comprise Justices Sanjiv Khanna, Hima Kohli, BV Nagarathna and PS Narasimha. Justices Khanna and Nagarathna replaced the retired members of the previous bench, Justices Sanjay Kishan Kaul and Ravindra Bhat.

A petition for review is presented to the judges through circulation in their chambers and is usually decided without a public hearing. However, if the judges consider that the petition for review has merit, they may authorize a public hearing and oral arguments. In this case, the applicants requested a public hearing.

By a 3-2 majority, the October 17 ruling declined to grant legal sanction to same-sex marriage and also declined to grant constitutional protection to civil unions and adoption rights for same-sex couples, noting that requiring the state to grant legal recognition or status to certain unions would violate the separation of powers doctrine and could lead to unforeseeable consequences.

Also read: Why Supreme Court’s minority order on same-sex marriage verdict raised hopes

While Chief Justice Chandrachud and Justice Kaul ruled in favour of recognising civil unions – seen worldwide as the first step towards granting full marriage equality – and adoption rights, Justices Bhat, Kohli and Narasimha held that the right to a civil union cannot be given the status of a constitutionally protected right when the right to marry has not been given the same status.

Udit Sood, a US-based lawyer who was among the 52 petitioners seeking marriage equality in India, filed the first review petition in the case on November 1, complaining that the court’s majority judgment was “grossly unfair” and “contradictory” in failing to protect the rights of the LGBTQIA+ community while acknowledging its plight.

“The majority’s decision is contradictory, patently erroneous and profoundly unfair. The majority found that gay Indians faced serious discrimination at the hands of the state, declared that discrimination should be prohibited, and then failed to take the next logical step of prohibiting discrimination,” Sood said in his petition filed through Karanjawala & Co.

In his petition, Sood has selected portions of the judgment authored by Justice Bhat, complaining that while the judgment wrote extensively about the “unfair discriminatory consequences” and violation of the fundamental rights of the LGBTQ+ community, it failed to take the next logical step of prohibiting discrimination.

Calling the contradiction an apparent error on the face of the record, Sood said it was nothing but an “abdication of duty” by the Supreme Court in not correcting a wrong after recognising it.

“Our Constitution entrusts this Hon’ble Court, and not the respondents (Centre), with the primary task of upholding fundamental rights. Finding that the petitioners are being discriminated against and then sending them away with wishes for the best for the future, is neither in keeping with the constitutional obligation of this Hon’ble Court towards gay Indians nor with the separation of powers envisaged in our Constitution,” his petition said, challenging the majority view that the government should take appropriate steps to remove the stigma of discrimination and protect same-sex couples.

Nearly a week later, Supriya Chakravarty and Abhay Dang also moved the Supreme Court seeking a review of the October 17 judgment. They argued that constitutional courts are empowered to review statutory laws to ensure their conformity with constitutional values ​​and that such courts do not need to wait for the legislature to enact or amend laws to recognise same-sex marriage.

“There is a right to a relationship, a right to a union, and a right to a civil union under the Constitution, but the majority decision fails to guarantee any legal status for these rights… The court unanimously concludes that the exclusion of same-sex couples from the existing statutory regime is discriminatory, but the majority decision provides no relief,” the petition reads.

The Supreme Court’s October 17 decision unanimously held that the right to marry was not a fundamental right and that it was not within the jurisdiction of the courts to give a positive directive to the legislature to characterize same-sex marriages and same-sex relationships through a new legal instrument.

The judgments – written separately by the CJI and Justices Kaul, Bhat and Narasimha – also refused to strike down or water down the provisions of the Special Marriage Act (SMA) to include non-heterosexual couples under it.

The justices, however, remained divided on how far a court can go, while acknowledging that homosexuality is not an “urban and elitist concept” and demanding that the state guarantee protection for such couples.

While the CJI and Justice Kaul held that the right to enter into a union for same-sex couples is a constitutionally protected right and the state has an obligation to recognise such civil unions and provide them with benefits under the law, including adoption rights, the other three judges rejected this view.