Marriage Equality Petitioners Seek Open Court Hearing Of Review Petition; CJI Agrees To Consider

In another development in the pleas concerning marriage equality in India, the petitioners who recently filed a review petition against the Constitution Bench judgement of the Supreme Court which refused to grant legal recognition for queer marriages in India, sought for an open court hearing of the review pleas.

The matter was mentioned by Senior Advocate Mukul Rohatgi before the bench comprising CJI DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra. He asserted–

"We have sought an open court hearing for the matter. If there is discrimination, there has to be a remedy. It is listed for 28th, it should not be deleted."

The CJI responded by stating–

"I have not gone through the petitions yet. We'll look at it and decide."

The review petition faults the judgment for not affording any legal protection to queer couples despite acknowledging the discrimination faced by them. This, the review petitioners argue, amounts to abdication of the Court's duty to uphold and protect fundamental rights.

In the review petition, it has been argued that judgment suffers from "errors apparent on the face of the record" and is "self-contradictory and manifestly unjust". The Court recognises that the Petitioners' fundamental rights are being violated by the State through discrimination, but fails to take the logical next step of prohibiting this discrimination.

“To find that the Petitioners are enduring discrimination, but then turn them away with best wishes for the future, conforms neither with this Hon'ble Court's Constitutional obligation towards queer Indians nor with the separation of powers contemplated in our Constitution” the review petition states.

It may be recalled that on 17.10.2023, a Constitution Bench of the Supreme Court had refused to grant legal recognition for queer marriages in India saying that it was a matter for the legislature to decide. The five-judge bench, led by Chief Justice of India DY Chandrachud and comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, had started hearing the batch of 52 petitions seeking recognition for queer marriage in India on April 18, 2023. After rigorous deliberation, the bench had reserved its judgment on May 11, 2023.

The bench pronounced had four judgements– 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, whereas Justice Bhat, Justice Kohli, and Justice Narasimha were in the majority.

Mr. Mukul Rohtagi, Ld. Senior Counsel was briefed by M/s Karanjawala & Co. Advocates led by Ms. Tahira Karanjawala, Partner and comprising of Mr. Arjun Sharma, Principal Associate and Ms. Sanya Dua, Associate. Ms. Geeta Luthra, Mr. Anand Grover, Ms. Maneka Guruswamy, Ld. Sr. Counsel along with Ms. Arundhati Katju and Ms. Karuna Nandy, Advs. also appeared on behalf of other Review Petitioners.