Review plea filed in Supreme Court on same-sex marriage verdict

It said there was an error apparent on the face of the record and an abdication of the duty entrusted to this court by the Constitution. The plea further said "to find that the petitioners are enduring discrimination, but then turn them away with best wishes for the future, conforms neither with this court's constitutional obligation towards queer Indians nor with the separation of powers contemplated in the Constitution." It added, "The majority judgment warrants review because it summarily 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."

Assailing Justice Bhat's view, the plea said the majority judgment is also self-contradictory in its understanding of marriage. "It acknowledges that the Special Marriage Act, 1954 (SMA) 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'," the plea said. "Our constitution primarily tasks this court-not the respondents (Centre and others) – with upholding fundamental rights. This Court has no more important function than to preserve the inviolable fundamental rights of the people'," it said, referring to a 1963 verdict.

A five-judge constitution bench had on October 17 refused to accord legal recognition to same-sex marriage, saying there was "no unqualified right" to marriage with the exception of those that are recognised by law. The constitution bench headed by Chief Justice DY Chandrachud had delivered four separate verdicts on a batch of 21 petitions seeking legal sanction for gay marriages.

All the five judges were unanimous in refusing to give legal backing to same-sex marriage under the Special Marriage Act and observed it is within Parliament's ambit to change the law to validate such union. However, by a majority of 3:2, the top court held that the queer couples do not have the right of adoption.

In his verdict, the CJI passed a slew of directions to the Centre, states and Union Territories to ensure that the queer community is not discriminated against because of their gender identity or sexual orientation and also to take steps to sensitise the public about queer identity, including that it is natural and not a mental disorder. Justice S Ravindra Bhat, since retired, who authored an 89-page judgement for himself and Justice Hima Kohli, had disagreed with certain conclusions arrived at by the CJI including on the applicability of adoption rules for queer couples and according to recognition of the right to a civil union.

Justice PS Narasimha, in a separate verdict, concurred with the views of Justice Bhat. Referring to the statement made by the Centre during the hearing on the matter, Justice Bhat had said "the Union shall set up a high-powered committee chaired by the Union Cabinet Secretary, to undertake a comprehensive examination of all relevant factors, especially including those outlined above. In the conduct of such exercise, the concerned representatives of all stakeholders, and views of all States and Union Territories shall be taken into account".

In his judgement, the CJI also recorded the assurance by Solicitor General Tushar Mehta that the Centre will constitute a committee chaired by the Cabinet Secretary for the purpose of defining and elucidating the scope of the entitlements of queer couples who are in union. The LGBTQIA++ persons, who had won a major legal battle in 2018 in the Supreme Court which decriminalised consensual gay sex, had moved the apex court seeking validation of same-sex marriage and consequential reliefs such as rights to adoption, enrolment as parents in schools, opening of bank accounts and availing succession and insurance benefits.

LGBTQIA++ stands for lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual and ally persons.