A review petition was filed on Wednesday, November 1 in the Supreme Court challenging the Constitution Bench judgement in the marriage equality case. On October 17, a five-judge bench headed by the Chief Justice of India (CJI) DY Chandrachud refused to grant marriage equality to LGBTQIA+ persons stating that it was up to Parliament to create a law. The bench also comprised Justices Hima Kohli, Sanjay Kishan Kaul, S Ravindra Bhat, and PS Narasimha. The review petition was filed by Udit Sood, who was one of the 52 petitioners in the case. The judgement was split 3:2, with the CJI and Justice Kaul recognising that queer couples can form civil unions and have the right to adopt, and the other three judges dissenting.
In his petition, Sood said that the judgement “suffers from significant errors” and “undermines the fundamental rights” guaranteed by the Indian Constitution under Articles 14, 15, 19, and 21. “In the impugned judgement, the Hon’ble Court specifically finds discrimination against members of the LGBTQ+ community, but declines to remedy or mitigate this discrimination and inequity. It is respectfully submitted that for a Constitutional Court to specifically find discrimination against a marginalised community, but refuse to grant appropriate relief on the ground that it is for the State to take measures is an abdication of its duties under the Constitution. Such contradictory findings ought to be remedied by this Hon’ble Court under its review jurisdiction,” the petitioner argued.
The petition also stated that 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. Sood also referred to Justice Kaul’s judgement where he held that SMA was violative of Article 14. “An objective to exclude non-heterosexual relationships would be unconstitutional, especially after this Court in Navtej has elaborately proscribed discrimination on the basis of sexual orientation. Therefore, the SMA is violative of Article 14.”
The petition also contended that SMA was enacted with the object and purpose of providing a progressive and secular legal framework for “any two persons” to solemnise their marriage under the law. The argument is that the Act is not restricted to interfaith couples alone. “Thus, the class of persons that the legislation covers in its ambit is that of all persons and seeks to regulate their marriages in a secular framework. Artificial classifications based on sexual orientation cannot further the Act’s stated object, nor is there any rational nexus between the classification at issue and the statute’s object.”
The review petition also argued that the majority judgement was “self-contradictory in its understanding of ‘marriage’.” The petition pointed out that while the judgement acknowledges that SMA confers the “status” of marriage and that the Act “created social status or facilitated the status of individuals in private fields” and the Parliament “has intervened and facilitated creation of social status through SMA”, the judgement then rests on the opposite premise that the terms of marriage are largely set independently of the State and that the status of marriage “is still not one that is conferred by the state.”
Any person who is aggrieved by a judgement can file a review petition within 30 days of the judgement, as per the Civil Procedure Code and the Supreme Court Rules. The Supreme Court only reviews a judgement if it fulfils certain conditions: mistake or error apparent on the face of record; discovery of new evidence; or any reason equivalent to these two. Review petitions are usually considered without oral arguments and by circulation among the judges in chambers and only by the same combination of judges who delivered the original judgement.
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