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Same-sex marriage review petitions: Decision delayed as Supreme Court judge rules against case | India Latest News

A decision on a review petition on same-sex marriage was delayed after Supreme Court Justice Sanjiv Khanna recused himself due to personal reasons. The top court was scheduled to hear a batch of petitions on Wednesday seeking a review of its October 17 judgment last year, which denied legal recognition to same-sex couples and said only Parliament and state legislatures can sanction their marriages.

For illustrative purposes only. (Reuters archive photo)

A bench headed by Chief Justice of India Dhananjaya Y Chandrachud and comprising Justices Sanjiv Khanna, Hima Kohli, BV Nagarathna and PS Narasimha was to hear the review petitions against the 2023 verdict. Justices Khanna and Nagarathna replaced retired members of the previous bench — Justices Sanjay Kishan Kaul and Ravindra Bhat.

Justice Khanna’s unexpected recantation deprived the bench of the required number of judges, temporarily halting the review process. Supreme Court Justice Chandrachud will now have to reconstitute the bench.

Senior advocates Neeraj Kishan Kaul and Abhishek Manu Singhvi on Tuesday appealed to the court and the CJI to hear the revision petitions in open court and not at the court premises as is customary, arguing that the importance of the case for the country and society justifies a departure from the usual practice of hearing revision petitions at the court premises.

The Supreme Court judge took note of the motion and stated that he would consider it, while pointing out that it was a petition being considered by the constitutional court and that he could not unilaterally decide to set a date for an open court hearing.

Typically, a motion for reconsideration is heard by judges in their chambers and decided without an open court hearing. However, if the judges find the motion for reconsideration to be valid, they may allow an open court hearing and oral arguments. In this case, the applicants requested an open court hearing.

Judgment from 2023

The October 17 judgment, delivered by a 3-2 majority, refused to grant legal recognition to same-sex marriages and denied constitutional protection to civil partnerships and adoption rights for queer couples. The judgment held that directing the state to grant recognition or legal status to some civil partnerships would violate the doctrine of separation of powers and could lead to unforeseeable consequences. While CJI Chandrachud and Justice Kaul ruled in favour of recognition of civil partnerships and adoption rights, Justices Bhat, Kohli and Narasimha held that the right to civil partnership cannot be accorded the status of a constitutionally protected right when the right to marry has not been accorded the same status.

Udit Sood, a US-based lawyer, one of 52 petitioners seeking marriage equality in India, filed the first review petition on November 1. He complained that the majority ruling was “manifestly unfair” and “contradictory” in that it failed to protect the rights of the LGBTQIA+ community despite acknowledging its hardships. Sood argued that the majority ruling found that queer Hindus faced grave discrimination at the hands of the state, ruled that discrimination must be prohibited, and then failed to take the logical next step of issuing an order prohibiting discrimination. Sood called this contradiction a prima facie error, saying it was nothing more than an “abdication of duty” by the Supreme Court not to correct an error after recognizing it.

Supriya Chakravarty and Abhay Dang had also approached the top court seeking a review of the October 17 verdict. They argued that constitutional courts have the power to review statutory laws to ensure their compliance with constitutional values ​​and do not have to wait for the legislature to enact or amend a law to recognise same-sex marriage. They noted that the bench had unanimously held that the exclusion of queer couples from the existing statutory scheme was discriminatory, but the majority decision did not grant any relief.

In a ruling on October 17, the top court unanimously ruled that the right to marry is not a fundamental right and that it is beyond the courts’ competence to give legislators positive guidance on defining same-sex marriage and queer relationships through a new legal instrument.

The judgments, written separately by the CJI and Justices Kaul, Bhat and Narasimha, also refused to invalidate or read down the provisions of the Special Marriage Act (SMA) to include non-heterosexual couples. However, the judges were divided on how far the court could go, even though they acknowledged that queerness was not an “urban, elitist concept” and required the state to provide protection to such couples.

While the CJI and Justice Kaul held that the right to civil partnership for same-sex couples is a constitutionally protected right and that the state has an obligation to recognise such partnerships and grant them the benefits of the law, including the right to adopt, the other three judges rejected this view.