A second review petition has been filed in the Supreme Court, on November 20, challenging the Constitution Bench judgement in the marriage equality case. A five-judge bench headed by the Chief Justice of India (CJI) DY Chandrachud, on October 17, categorically refused to grant marriage equality to LGBTQIA+ persons and said that it was up to Parliament to create a law. However, the judgement was split 3:2 in the topics of adoption and civil union. While the CJI and Justice Kaul recognised that queer couples can form civil unions and have the right to adopt, the other three judges dissented. The review petition has been filed by lawyer Utkarsh Saxena and his partner Ananya Koti, one of the 52 petitioners in the case.
In the petition, they have said that the majority judgement suffers from several errors on the face of the record and list seven points, including that the majority opinion ‘mischaracterized’ the reliefs sought by the petitioners. The main grounds on which the petitioners filed the review petition are:
> Stating that the majority opinion mischaracterised the petitioners’ case, the petitioners pointed out that it answers a question that was never asked - whether there exists an abstract “right to marry” - but fails to answer the question that was asked - whether queer couples can be excluded from a legal regime purely on the basis of their sexual orientation.
> Further, the petitioners’ claim was for an equal and non-discriminatory access to the existing legal status provided to marriage, which was also mischaracterised, they said and added that therefore, the court has declined a relief that was never sought - a “new” legal regime - and also fails to address a relief that was sought - equality.
> They also contended that though the apex court observed that the effect of Special Marriage Act (SMA) was “unconstitutionally discriminatory”, the remedy has been left to the discretion of an executive committee. “It is respectfully submitted that once a Court finds that a statute is unconstitutionally discriminatory, it cannot then delegate the task of remedying discrimination to the executive,” they said.
Read: Explained: Special Marriage Act provisions challenged by the marriage equality petitions
> Regarding adoption, they said that the court held that the existing legal regime regarding marriage amounts to ‘unconstitutional discrimination’ but declined to act upon it. In addition, the majority judgement had held that as queer marriages are not recognised, they cannot adopt as the adoption rules are based on the existence of a marriage. “It is respectfully submitted that a distinction founded upon an unconstitutional discrimination cannot become valid, on the sole ground that the Court perceives institutional limitations to remedying the underlying discrimination,” they said and added that the court should consider the prohibition on adoption on its own terms.
Further, they stated that the Supreme Court has resiled from the ‘promises of equal moral membership’ made to queer individuals in Navtej Johar vs Union of India case “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”, they said and sought the following reliefs: declare that SMA excluding queer couples is unconstitutional; interpret the SMA in a gender-neutral way; declare that queer couples have the right to solemnise and register their marriage under the SMA; and declare that queer couples have the right to adopt.
On November 1, another petitioner Udit Sood, along with three others, filed a review petition saying that the judgement undermined the fundamental rights guaranteed by the Indian Constitution under Articles 14, 15, 19, and 21. Recently, on November 23, the petitioners sought for an open court hearing of the review pleas. The matter was mentioned by senior advocate Mukul Rohtagi, who appeared on petitioners’ behalf, before a bench headed by CJI DY Chandrachud on November 23.
Read: Review petition filed in SC against marriage equality judgement
Rohtagi said the review plea coming up for hearing on November 28 should not be deleted and said that the matter be heard in open court. At this, CJI Chandrachud said that he has not looked into the petitions yet and the court will decide on the question of open court hearing after going through the contents of the review pleas. Generally, review petitions are tested on narrow grounds like mistakes of law, error apparent on face of record, discovery of new evidence, or any reason equivalent to these two; and are often circulated and dismissed in chambers and are rarely given open court hearings. A review petition can be filed in any case, by any person who is aggrieved by a judgement. However, it has to be done within 30 days of the judgement, as per the Civil Procedure Code and the Supreme Court Rules.
Read: The concurring views held by CJI Chandrachud and Justice Kaul on marriage equality
Read: Civil Unions and Adoption: Points of Disagreement in Marriage Equality Case
(With IANS inputs)