A five-judge bench led by Chief Justice of India (CJI) DY Chandrachud will hear a bundle of petitions seeking a review of the top court’s October 16 judgement refusing to recognise same-sex marriages in India, on July 10. At least 12 review petitions were filed challenging the verdict and calling for a more inclusive interpretation of marriage laws that are extended to same-sex couples.
The unanimous verdict held that the right to marry was not a fundamental right and that it was beyond the remit of courts to issue a positive direction to the legislature to characterise same-sex marriages and queer relationships through a new instrument of law. While the CJI and Justice Sanjay Kaul declared that the right of queer couples to enter into a union is a constitutionally protected right and that the State has an obligation to recognise such civil unions and grant them benefit under law, the other three judges were against this view.
Before the closed-door hearing on July 10, Outlook takes a look at some of the major arguments in the review petitions and what has changed since the verdict.
What do the review petitions say?
A US-based lawyer, Udit Sood, who was also one of the 52 petitioners in the case, filed the first review petition in November 2023, stating that the judgement “suffers from significant errors” and “undermines the fundamental rights” guaranteed by the Indian Constitution under Articles 14, 15, 19, and 21. The plea 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.”
Further, the majority judgement was “erroneous” in holding that the sole intention of the Special Marriage Act (SMA) was to enable interfaith marriages only between heterosexual couples, the petition stated. “An objective to exclude non-heterosexual relationships would be unconstitutional, especially after this Court in Navtej Singh Johar v. Union of India (2018) has elaborately proscribed discrimination on the basis of sexual orientation. Therefore, the SMA is violative of Article 14,” Sood said.
The second review petition was filed by lawyer Utkarsh Saxena and his partner Ananya Koti, one of the 52 petitioners in the case. Echoing the aforementioned view, their petition also states that “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”.”
While the CJI and Justice Kaul opined that same-sex couples could adopt, the majority opinion was against it. Regarding this, the petitioners submitted that the majority decision compounds its own error when considering the prohibition upon adoption. “Having already held that the existing legal regime amounts to unconstitutional discrimination (but having declined to act upon it), the majority then holds that because queer marriages are not recognised (which, by its own admission, is discriminatory), there exists a rational justification to deny to queer couples the right to adopt - as the adoption regulations presuppose the existence of a valid marriage,” their plea read. Hence, a distinction founded upon an unconstitutional discrimination cannot become valid, it said.
The petitioners requested the court to declare that queer couples have the right to have their marriage solemnised and registered under the SMA; and also declare, specifically, that queer couples have the right to adopt under the CARA.
How will the review petitions be heard?
According to the Supreme Court Rules, review petitions are not entertained in open court through oral arguments by lawyers. Instead, they are heard ‘through circulation’ by judges in their chambers. However, in certain exceptional cases, an order can be passed to consider the review plea in open court.
A day ahead of the hearing, senior advocates urged the CJI to have the review hearing in the marriage equality case in an open courtroom, considering the public interest involved in the issue. The CJI agreed to “keep in mind” but did not commit to these oral requests.
However, the entire case will not be reviewed. When hearing a review petition filed against its own order or judgement, the Court’s power is limited to remedying an apparent error or the resultant grave injustice that has been the consequence of a decision of the Supreme Court.
What has changed since the verdict?
What is being seen as a significant development is a change in the Bench composition that would be hearing the review petitions. Ideally, the same 5-judge bench which delivered the judgement is supposed to hear the review plea. But since Justices Sanjay Kishan Kaul and S Ravindra Bhat have since retired, Justices Sanjiv Khanna and BV Nagarathna replace them.
Justice Bhat had earlier disagreed with aspects of Justice Chandrachud’s Navtej Johar judgement by saying, “There are almost intractable difficulties in creating, through judicial diktat, a civil right to marry or a civil union, no less, of the kind that is sought by the petitioners in these proceedings.”
Another development since the verdict came with the constitution of a six-member committee headed by the Cabinet secretary in April 2024 to examine the various concerns of the queer community, as directed by the Supreme Court. The committee only involved all government officials, according to the notification. It, however, did not include anyone from the LGBTQIA+ community. But the notification also mentioned that other experts and officers may be added, if needed.
