Marriage Equality Review : Petitioners Say Supreme Court Misunderstood Their Case; Claim Wasn't For New Legal Status But For Equality

Lawyer Utkarsh Saxena and his partner Ananya Koti have filed a review petition in the Supreme Court against the judgment in Supriyo v. Union of India which refused to legalise same-sex marriages. They were petitioners in the case that was decided on 17.10.2023 by a 5 judge bench.   

"..by refusing to grant queer couples access, on equal terms, to one of the most significant social institutions in our society - both intrinsically, and as a gateway to other crucial rights - the Court resiles from the promises of equal moral membership that it made to queer individuals in Navtej Johar vs Union of India, and entrenches once again a doctrine of 'separate and unequal' ", the most recent review petition states. 

A review petition was previously filed by four petitioners (Udit Sood, Saatvic, Lakshmi Manoharan and Gagandeep Paul), faulting the judgment for not affording any legal protection to queer couples despite acknowledging the discrimination faced by them. This amounts to abdication of the Court's duty to uphold and protect fundamental rights, they had argued. 

Main Grounds Urged In The Review Petition

Ground 1: On Discrimination and the “Right to Marry”

The Review Petitioners argue that the majority judgment fundamentally mischaracterises the Petitioners’ case. According to them, it answers a question that was never asked- whether there exists an abstract “right to marry”? but fails to answer the question that was actually asked, which is whether queer couples can be excluded from a legal regime purely on the basis of their sexual orientation.

“It mis-characterises the Petitioners’ claim as asking for the creation of a “new social/legal status,” instead of a claim asking for access, on equal and non-discriminatory terms, to an existing legal status” the plea states. It declines a relief that was never sought, i.e, a “new” legal regime, and fails to address the relief that was actually sought for, i.e, equality.

The petitioners elaborated that, going by the Court's logic, an inter-caste or inter-faith couple, approaching the Court against a hypothetical anti-miscegenation law, would be turned away on the ground that they are asking for the creation of a new social or legal status.

"The fundamental flaw in the majority opinion, therefore, lies in its artificial separation of the right to marry from the right against discrimination. In holding that there is no freestanding, a contextual “right to marry,” the majority erects a strawman, and then knocks it down. The actual claim before the Court, however, is of a right to marry on equal terms with the rest of society; it is a right not to be discriminated against in access to marriage; a right that is of particular importance because, as has been noted above, there is a range of other fundamental rights that are inextricably bound up with the ability to access the institution of marriage."

Ground 2: On the Special Marriage Act

The Review petitioners also argue that the majority opinion has made a crucial factual error by holding that the Special Marriage Act (SMA) is limited to couples “belonging to different faiths.” The SMA is open to all couples who do not wish to avail of their respective personal laws in order to get married, the petitioners argue.

“..therefore, a gender neutral reading of the SMA advances its purpose, and is consistent with its underlying thrust” the plea states.  The gender-neutral reading of certain provisions of the SMA is well within the ambit of the Court, the petitioners argue.

The majority has erred in holding because the “idea” of the drafters was “not to exclude” non-heterosexual couples, the SMA is constitutionally valid, the plea says. The petitioners argue that in testing the constitutionality of a statute, it is not its “object” or “intention” that matters, but its effect.

Ground 3: Remedies

The majority opinion does concede that the effect of SMA’s exclusionary provisions is unconstitutionally discriminatory. However, it leaves the remedy at the discretion of an executive committee, stating that its resolution is too legally complex for judicial declaration or interpretation.

The Review Petitioners argue that once a Court finds that a statute is unconstitutionally discriminatory, it cannot then delegate the task of remedying discrimination to the executive.

“..there is nothing in our law or jurisprudence that authorises a Court to both hold that there is unconstitutional discrimination, and that it has a discretion in deciding whether or not to remedy it. This discretion is unknown to our constitutional scheme and history, and is productive of great public mischief: with the greatest of respect, courts cannot choose to decide that they would rather not, all things considered, remedy unconstitutional discrimination, when it has been brought to them by individuals directly impacted by said discrimination“ the plea states. 

Ground 4: Adoption

The majority also erred in denying adoption rights to same sex couples, the review petitioners argue.

The Court denied queer couples the right to adopt because queer marriages are not recognised- as the adoption regulations presuppose the existence of a valid marriage.

However, the Court already held that the existing legal regime amounts to unconstitutional discrimination against queer couples and then declined to act upon it, the petitioners point out.

“It is respectfully submitted that a distinction founded upon an unconstitutional discrimination cannot become valid, on the sole ground that the Court perceives institutional limitations to remedying the underlying discrimination” the plea states.

The prohibition upon adoption must therefore be considered on its own terms, it has been argued. As is evident from the dissenting opinion of the Chief Justice, the remedy in the context of adoption is a straightforward judicial interpretation, the review petitioners have stated in their plea.