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More than a month after Supreme Court refused to provide legal recognition to same-sex marriages, the apex court will hear a review petition on the verdict on Tuesday, 28 November.
Who filed the petition? The petition was filed by United States-based lawyer Udit Sood, who is one of the 50-odd petitioners seeking marriage equality in India.
Filed against the 17 October SC verdict under Article 137 (deals with the review of judgments by SC) of the Indian Constitution, the review petition accessed by The Quint, called the judgment "self-contradictory and manifestly unjust."
The 450-page petition urged the apex court to "review and correct" its judgment, which denied equal marriage rights to LGBTQIA+ communities, saying the ruling “suffers from errors apparent on the face of the record."
Three points made in the review petition:
The review petition laid down three grounds on which the SC judgment is to be reviewed and said that the matter subjects the constitutional rights of queer people to social morality and politics.
First, the plea states that the majority judgment by the court is "facially erroneous" and that while it recognises that there is discrimination against queer people, it does not provide for a means to address this discrimination.
The review plea gives an example of how the SC judgment holds "that the respondents’ characterisation of marriage for various collateral and intersectional purposes as a permanent and binding legal relationship… between heterosexual couples only (and no others) impacts queer couples adversely" and "has adverse discriminatory impact” by wrongly depriving them of marriage-related benefits."
"To find that the Petitioners are enduring discrimination, but then turn them away with best wishes for the future, conforms neither with this Hon'ble Court's Constitutional obligation towards queer Indians nor with the separation of powers contemplated in our Constitution."Review petition filed by Udit Sood
Second, the plea said that the judgment is "self-contradictory" in its "understanding of marriage." The petition contended that “the majority judgment overlooks that marriage, at its core, is an enforceable social contract."
"The right to so contract is available to anyone capable of consenting. Adults of any faith or no faith may engage in it. No one group of people may define for another what marriage means. No contract, nor forceful State action like imprisonment, may curtail an adult’s fundamental right to marry”.
Third, the plea called the SC judgment "manifestly unjust" as it
"countenances animus-motivated depravation of the Petitioners' fundamental rights."
"The majority judgment effectively compels young queer Indians to remain in the closet and lead dishonest lives if they wish the joys of a real family. It is fallacious that, under these facts, and in the absence of a fundamental right to marry or form a union, the rights to equal protection, dignity and fraternity are insufficient to justify judicial intervention."Review petition filed by Udit Sood
What was the 17 October verdict?
On 17 October, a five-judge bench headed by Chief Justice of India DY Chandrachud ruled against legalising same-sex marriage and said that it was up to the Parliament to make laws to enable it.
The 3:2 majority opinion was delivered by Justices RS Bhat, Hima Kohli, and PS Narasimha. Meanwhile, CJI Chandrachud and Justice Sanjay Kishan Kaul delivered separate dissenting judgments.
The 366-page judgment touched upon various matters, including whether the right to marry can be considered a fundamental right, whether queer couples can adopt, and whether a non-heterosexual civil union is plausible. You can read the highlights of the judgment here.
Udit Sood's reaction post SC verdict:
Speaking to The Quint after the verdict on 17 October, Udit Sood expressed his disappointment and said that it was the job of the courts to "protect queer people against discrimination.”
Sood said that his partner Andrew and he were looking forward to the verdict as they were "excited to marry in India."
"We dreamed of spending more time in my home country, which I painfully left behind because of the inequalities queer Indians are forced to endure. Unfortunately, it looks like we’re going to have to put our plans on hold for now," Sood had said.