CJI to consider requests for public hearing on review of same-sex marriage verdict

On July 9, Chief Justice of India DY Chandrachud agreed to hear oral requests from lawyers seeking to hear the Constitutional Court review its majority judgment refusing to legalise same-sex marriage in open court on July 10.

The lawyers, including senior advocates like senior advocates Mukul Rohatgi, Neeraj Kishan Kaul, Menaka Guruswamy, advocates Karuna Nundy and Arundhati Katju, urged the Chief Justice, during the oral mention hour, to hold the review hearing in the open court room rather than in the privacy of their chambers via circulation as is usually done.

Mr Kauk said the request was made in light of the public interest involved in the matter.

Read | How is a petition for review heard by the Supreme Court? | Explanation

Justices S K Kaul and S Ravindra Bhat, two of the judges of the original Constitution Bench that delivered the judgment last October, have since retired. Justices Sanjiv Khanna and B V Nagarathna will replace them on the Constitution Bench that will review the verdict.

Justice Bhat led the majority opinion. Justice Kaul was in the minority on the bench along with Chief Justice Chandrachud.

The petitioners argued that the Supreme Court verdict forced same-sex couples, who want to experience the joys of a real family, to remain in the closet and lead a dishonest life.

The judgment acknowledged that same-sex partners suffer the indignity of discrimination in their daily lives, but denied them any legal remedy, choosing to leave the community at the mercy of government policy and legislative wisdom.

On October 17, the Supreme Court had stated that it did not wish to allow the constraints of the judiciary to encroach on the legislative domain of Parliament. It had considered that Parliament was the ideal forum to debate and vote on laws, or not, on the question of granting legal status to same-sex marriage.

A majority of the three-judge Constitutional Court disagreed with Chief Justice Chandrachud’s view that the government should at least grant “civil union” status to same-sex partners, saying such a concept was not supported by statutory law.

The petitioners argued that the majority judgment contradicts itself on several points.

On the one hand, the Constitutional Court had held that Parliament had conferred social status on marriage as an institution under the Special Marriage Act, 1954. But despite this conclusion, the Court had ultimately opted for the opposite premise that the conditions of marriage were largely determined independently of the State and the status of marriage was not conferred by the State.

The petitioners had urged the Constitutional Court to include same-sex marriage within the scope of the 1954 law.

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

“No contract or coercive action by the state can restrict the fundamental right of an adult to marry,” the review petition states.

The review petitions pointed out that the 1954 law excluded same-sex marriages from its purview at a time when homosexuality was a “vice” and a crime. It said the ideals of equal participation, dignity and fraternity remain fallacious for the homosexual community unless the judiciary steps in to review its own judgment.

The petitioners pointed out that it was the Supreme Court itself that had decriminalized homosexuality. The majority judgment, according to the petitioners, had failed to uphold the Supreme Court’s constitutional obligations towards same-sex couples.