Petitioners seek open court hearing for same sex marriage review plea

A petition seeking a review of the October 17 verdict refusing to accord legal recognition to same-sex marriages by queer couples was on Thursday mentioned before the Supreme Court for an open court hearing.

A bench led by Chief Justice D Y Chandrachud took note of the submissions of senior advocate Mukul Rohatgi, appearing for one of the petitioners, that the review plea needed to be heard in open court to redress the grievances of those seeking validation of same-sex marriages. The bench also comprised justices J B Pardiwala and Manoj Misra.

"I have not examined the (review) petition. Let me circulate it (among judges of that Constitution bench)," the CJI said.

"All judges (of that Constitution bench) agreed that there is discrimination and if there is some kind of discrimination then there has to be a remedy. The lives of a large number of people depend on it. We have urged for an open court hearing," Rohatgi said, adding that the review plea was listed for consideration on November 28.

According to apex court procedures, the plea seeking review of a judgment is considered by judges concerned in chambers with no oral submissions by lawyers.

However, in exceptional cases, review pleas including the one pertaining to handing down the death penalty, are heard in an open court.

The review plea, which was mentioned on Thursday, was filed by Udit Sood, one of the 21 petitioners, in the first week of November assailing the judgment.

It said the judgment acknowledged the discrimination against queer couples but "turned them away with best wishes for the future".

The Constitution bench headed by the CJI had delivered four separate verdicts on the batch of 21 petitions seeking legal sanction for gay marriages.

All the five judges were unanimous in refusing to give legal backing to same-sex marriage under the Special Marriage Act and observed it is within Parliament's ambit to change the law for validating such union.

However, by a majority of 3:2, the top court held that the queer couples do not have the right of adoption.

In his verdict, the CJI passed a slew of directions to the Centre, states and Union territories to ensure that the queer community is not discriminated against because of their gender identity or sexual orientation and also to take steps to sensitise the public about queer identity, including that it is natural and not a mental disorder.

Justice S Ravindra Bhat, since retired, who authored an 89-page judgment for himself and Justice Hima Kohli, had disagreed with certain conclusions arrived at by the CJI, including on the applicability of adoption rules for queer couples and according recognition of right to civil union.

In a separate verdict, Justice PS Narasimha had concurred with the views of Justice Bhat.

The review plea said, "The petitioners respectfully submit that this court ought to review and correct its decision in ...because the impugned judgment suffers from errors apparent on the face of the record and is self-contradictory and manifestly unjust."

It added that the majority judgment led by Justice S Ravindra Bhat, since retired, is "facially erroneous because it finds that the respondents (Centre and others) are violating the petitioners' fundamental rights through discrimination" but fails to end that discrimination.

Assailing the majority view of justices Bhat, Hima Kohli and PS Narasimha, the review petition said that they neutered the top court's jurisdiction.

"With respect, the majority judgment neuters this court's jurisdiction, holding that while 'recognition' of discrimination and violation of the petitioners' fundamental rights 'is this court's obligation, falling within its remit', separation of powers prohibits this court from enjoining the discrimination or otherwise protecting those fundamental rights," the plea said.

It said there was an error apparent on the face of the record and an abdication of the duty entrusted to this court by the Constitution.

The plea further said "to find that the petitioners are enduring discrimination, but then turn them away with best wishes for the future, conforms neither with this court's constitutional obligation towards queer Indians nor with the separation of powers contemplated in the Constitution."

It added, "The majority judgment warrants review because it summarily disregards the foregoing authority to make the chilling declaration that the Constitution of India guarantees no fundamental right to marry, found a family, or form a civil union."

Assailing Justice Bhat's view, the plea said the majority judgment is also self-contradictory in its understanding of 'marriage'.

"It acknowledges that the Special Marriage Act, 1954 (SMA) confers the 'status' of marriage, observing that the Act 'in fact created social status or facilitated the status of individuals in private fields' and that the Parliament ‘has intervened and facilitated creation of social status (marriage) through SMA'," the plea said.

The LGBTQIA++ persons, who had won a major legal battle in 2018 in the Supreme Court which decriminalised consensual gay sex, had moved the apex court seeking validation of same-sex marriage and consequential reliefs such as rights to adoption, enrolment as parents in schools, opening of bank accounts and availing succession and insurance benefits.

LGBTQIA++ stands for lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual and ally persons.