A five-judge Bench headed by Chief Justice of India D.Y. Chandrachud is scheduled on July 10 to hear petitions seeking a review of an October 2023 judgment of the Supreme Court which refused to legalise same-sex marriage.
The review pleas would be examined in the judges’ chambers at 1.30 p.m. on Wednesday.
Explained | How does a review petition get heard in the Supreme Court?
Tuesday morning saw senior advocates A.M. Singhvi, Mukul Rohatgi, Neeraj Kishan Kaul, Menaka Guruswamy, advocates Karuna Nundy and Arundhati Katju urge the Chief Justice, during oral mentioning hour, to have the review hearing in the open courtroom considering the public interest involved in the issue.
The Chief Justice refused to commit to an open court hearing.
The Review Bench would also comprise Justices Sanjiv Khanna, Hima Kohli, B.V. Nagarathna and P.S. Narasimha. Justices Khanna and Nagarathna replace Justices S.K. Kaul and S. Ravindra Bhat, who have both retired.
Justice Bhat had headed the majority opinion and Justice Kaul was, along with Chief Justice Chandrachud, gave the minority view on the Constitution Bench in October 2023.
Same-sex marriage verdict
The review petitions have argued that the apex court verdict compelled queer couples, who wish for the joys of a real family, to remain in the closet and lead dishonest lives.
The judgment had acknowledged that queer partners suffer from the indignity of discrimination in their everyday lives, but denied them any judicial relief, choosing to leave the community at the mercy of government policy and legislative wisdom.
The ideal forum
The apex court, on October 17 last year, had said it did not want to leave the constraints of judicial power to encroach into the legislative domain of the Parliament. It had said the Parliament was the ideal forum to debate and pass laws, or not, on the question of conferring legal status to same-sex marriage.
The majority of the three judges on the Constitution Bench had disagreed with the view of Chief Justice Chandrachud that the government should at least grant a ‘civil union’ status to same-sex partners, saying such a concept was not backed by statutory law.
Editorial | Law and custom: On the Supreme Court’s verdict on same-sex marriage
The review petitions have contended the majority judgment contradicts itself in several fronts.
For one, the Constitution Bench had said the Parliament conferred social status for marriage as an institution under the Special Marriage Act of 1954. But, despite this finding, the Bench had finally settled on the opposite premise that the terms of marriage were largely set independent of the state, and the status of marriage was not conferred by the state.
The petitioners had urged the Constitution Bench to include same-sex marriage within the ambit of the 1954 Act.
The review petitions emphasised that the right to marry was a fundamental right.
“No contract or forceful State action can curtail an adult’s fundamental right to marry,” the review petitions said.
The review pleas pointed out that the 1954 Act excluded same-sex marriages from its ambit at a period when homosexuality was a “vice” and a crime. It said ideals of equal participation, dignity, fraternity remain fallacious for the queer community unless the judiciary intervenes to review its own judgment
The petitions noted that it was the Supreme Court itself which had decriminalised homosexuality. The majority judgment, the plea said, had fallen short of the constitutional obligations of the apex court towards queer couples.
Published - July 09, 2024 11:44 am IST
