The Supreme Court on 28th November will consider a bunch of petitions seeking to reconsider the same-sex marriage judgment which was delivered on 17th October. The five-judge bench had refused same-sex marriage for LGBTQ+ couples by a 3-2 verdict, saying that it is a domain of legislature and courts can’t dictate such matters. On 23rd November, the court agreed to consider the petitions asking for a review.
Representing queer couples, senior advocate Mukul Rohatgi appeared before a bench headed by CJI DY Chandrachud and submitted that even as same-sex marriage was rejected, the bench had agreed that there was discrimination against the members of the LGBTQ+ community.
Seeking an open court hearing, Rohatgi said, “It is tentatively listed on November 28. Let it not be deleted. Apart from this, majority or minority, both views have held that there is a discrimination. If there is discrimination, there also has to be a remedy. This is why we have pressed for an open court hearing.”
The CJI responded saying that he is yet to go through the review petitions and the plea for an open court hearing will be considered. He also asked the petitioners to complete all administrative formalities of the case.
Rohatgi was accompanied by other lawyers. Some other petitions were also filed. A review petition was reportedly previously filed by Udit Sood, Saatvic, Lakshmi Manoharan and Gagandeep Paul against the 17th October verdict.
The petitioners described the verdict as “self-contradictory and manifestly unjust”. It read, “The discrimination faced by the queer community is acknowledged in the verdict but the cause of the discrimination is not removed. The legislative choices see same-sex couples as less than human by denying them equal rights.”
On 17th October, a 5-judge Constitutional Bench of the Supreme Court refused to recognise same-sex marriage in India in a split 3-2 verdict.
The matter was heard by Chief Justice of India (CJI) DY Chandrachud, Justices S Ravindra Bhat, Sanjay Kishan Kaul, Hima Kohli and PS Narasimha for a total of 10 days, following which they reserved their verdict on 11th May this year.
The majority verdict against the recognition of ‘same-sex marriage, under the Special Marriage Act (SMA), came from Justice Ravindra Bhat and Justice PS Narasimha. Justice Hima Kohli supported the judgement of Justice Bhat.
Justice Ravindra Bhat upheld that marriage in itself is not a fundamental right and that the institution has been historically based on customs such as Muslim personal law, the Shariat Act, and the Karaj Act.
Justice Bhatt added that queer people have the right to choose a partner, enjoy privacy and live with dignity but their marriage cannot be recognised in the absence of codification.
