'Not Protecting Queer Couples Despite Acknowledging Discrimination Is Abdication' : Review Petition Against Supreme Court Verdict

1. Declining To Interpret The Special Marriage Act, 1954 In A Manner Consistent With Part III Of The Constitution

The review petitioner argues that the judgment suffers from an error apparent on the face of the record in its rejection of the plea of the Petitioners that the Special Marriage Act, 1954 is discriminatory and that its provisions ought to be read neutral to gender and sexual orientation, so as to extend its benefits to the LGBTQ+ community. The Majority Judgment has wrongly concluded that the exclusion of non-heterosexual couples from the fold of the SMA does not render it discriminatory.

The review petitioner relies on the dissenting opinion of Justice S.K. Kaul wherein he held that if the intent of the SMA was to facilitate inter-faith marriages, then there would be no rationale nexus with the classification it makes i.e., excluding non-heterosexual relationships. In his minority judgment he has held that the SMA is violative of Article 14.

“..the Majority Judgment incorrectly relies on the principle that under-classification or under-inclusion is not per se discriminatory, as a rationale to justify the conclusion that the Special Marriage Act, 1954 is not discriminatory,” the plea argues.

That Court wrongly analyzed that the sole intention of the SMA was to enable the marriage of heterosexual couples belonging to different faiths, the review petitioner argues. 

"..the Special Marriage Act, 1954 was enacted with the object and purpose of providing a progressive and secular legal framework for "any two persons" to solemnise their marriage under the law, irrespective of societal prejudices and archaic beliefs. The fact that it was aimed to allow any two persons to marry is substantiated by the fact that it covers within its ambit, the marriage of any two persons even of the same faith and is not restricted to inter-faith couples," the plea states. 

2. Failure To Recognise The Fundamental Right To A Civil Union For Non Heterosexual Couples, In the Alternative To Granting The Right Of Marriage

The plea urges that the Court at the very least, ought to have recognised and declared the fundamental right of non-heterosexual couples to enter into a civil union. This may be operationalized by allowing registration of queer relationships under Sections 15 and 16 of the Special Marriage Act, 1954, or Section 18(f) of the Registration Act, 1908, the plea suggests.

The plea states that the verdict erred in concluding that one cannot approach the Apex Court to seek enforcement of unenumerated fundamental rights. “This view turns the clock back on the rich jurisprudence that the Courts of this country have developed on Part III of the Constitution,” the plea states.

While the Majority Judgment recognises that Queer persons have a "right to relationship" which falls within the ambit of Article 21, it prescribes no obligation on the State to recognise such relationships and the rights that would flow from such a relationship, the plea contends.

3. Failure To Mould Or Fashion Appropriate Relief Despite A Specific Recognition Of ‘Indirect Discrimination’ Against The Queer Community

Even though the majority judgment finds that the State's legal framework discriminates against the queer community, it restrains itself from granting any relief to alleviate or mitigate such discrimination.

“..after having specifically recognised, and in fact elaborated and elucidated the discrimination faced by the queer community as a result of the lack of access to the right of marriage, the Hon'ble Court abdicates it constitutional duty to pass appropriate directions” the plea argues.

4. Declaring That There Is No Fundamental Right To Marry Under The Constitution

The Petitioner argues that the Supreme Court has repeatedly intervened to uphold the fundamental right to marry a person of one’s choice and the recent judgment goes against precedents set by the Court. “the Majority Judgment warrants review because it 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” the plea states.

The review petitioner has argued that the Majority Judgment is self-contradictory in its understanding of "marriage". The judgment acknowledges that the Special Marriage Act, 1954 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." However, it ultimately relies on the opposite premise, that the terms of marriage are largely set independently of the State and that the status of marriage "is still not one that is conferred by the state."

The review petitioner argues that the Majority Judgment overlooks that marriage, at its core, is an enforceable social contract. The right to such a contract must be available to consenting adults, it has been argued.

"Adults of any faith or no faith-may engage in it. No one group of people may define for another what "marriage" means. No contract, nor forceful State action like imprisonment, may curtail an adult's fundamental right to marry”, the plea states.

"..the conclusion reached by the Impugned Judgment that the right to marry is not a right available to all, without regard to sex, effectively renders nugatory the findings and the observations of the Hon'ble Five Judge Bench of this Hon'ble Court in Navtej Singh Johar & Ors. v. Union of India (2018) 10 SCC I and of the Hon'ble Nine Judge Bench of this Hon'ble Court in K.S. Puttaswamy v. Union of India (9 Judges), (2017) 10 SCC 1. These rulings, at a minimum, confirmed queer Indians' right to equal citizenship" the review petitioner argues. 

5. Failure To Grant The Right Of Joint Adoption To Queer Couples

The review petitioner also argues that the Majority Judgment erred in concluding that the Juvenile Justice Act does not allow adoption by unmarried couples; and that CARA Regulation 5(3) is not a case of delegated legislation being ultra vires the statute.

“As correctly noted by Hon'ble the Chief Justice, the Majority Judgment fails to address whether Regulation S(3) is discriminatory for distinguishing between married and unmarried couples for the purpose of adoption and for the disproportionate impact that it has on the members of the queer community while simultaneously holding that "the State cannot on any account, make regulations that are facially or indirectly discriminatory on the ground of sexual orientation” the plea states.

The plea points out that Justice Bhat in his judgment notes the discriminatory impact of the adoption regulations on queer persons, but again, leaves remedies to be provided by the State.

“...for a Constitutional Court to specifically identify discrimination; but fail to grant appropriate remedies, is an abdication of its responsibility under the Constitution of this country” the plea says.

Same- Sex Marriage Verdict

On 17.10.2023, the bench had pronounced four judgments– written by CJI DY Chandrachud, Justice SK Kaul, Justice Ravindra Bhat and Justice PS Narasimha respectively. It had unanimously held that there was no fundamental right to marry in India. Further, it was also unanimously held that the Supreme Court could not legislate upon queer marriages as the same would violate the doctrine of separation of power and would amount to entering the domain of the legislature.

However, all the judges on the bench had agreed that the Union of India, as per its earlier statement, shall constitute a committee to examine the rights and entitlements of persons in queer union, without legal recognition of their relationship as a "marriage". The Court had also unanimously held that that queer couples have a right to cohabit without any threat of violence, coercion of interference; but refrained from passing any directions to formally recognize such relationships as marriages.

In the judgement, all five judges unanimously had held that transgender persons in heterosexual relationships had the right to marry under existing laws including personal laws which regulate their marriage. Additionally, in a 3:2 decision, the Supreme Court denied queer couples the right to adopt children. CJI DY Chandrachud and Justice SK Kaul were in the minority.