Marriage Equality Review Petition: One Step Forward Towards The Dignity Of Choice

The struggle for marriage equality transcends the mere elevation of civil unions. It is not solely about gaining societal recognition for two individuals as a couple. Rather, it encompasses the vast array of rights that come with legal recognition of such unions. This not just includes legal recognition of their relationship, but also access to health benefits, inheritance rights, joint bank accounts and tax filings, and more. It emphasises how one legal right can lead to numerous other protections and privileges, thereby enhancing equality and security for those in such civil unions.Consider this — the inability to open a joint bank account with your partner, the ineligibility for adoption and to be covered under insurance as family or the distress of knowing that, in the event of death, the law does not acknowledge one’s partner as rightful successor.Same-Sex Marriage: What Does the Review Petition Say & Who Are the Petitioners?The material costs imposed on same-sex relationships in India – that are still striving for legitimacy – resemble a penalty rather than the independence that the LGBTQIA+ community seeks to achieve.Take the example of the landmark Obergefell v Hodges case in the Supreme Court of the United States, where a surviving spouse, who had married his partner on a tarmac in a state recognising same-sex unions, went to court to seek his right to be listed as the surviving spouse on his partner’s death certificate. As remarked by the bench, by statute, they were to remain strangers even in death, a state-imposed separation.While the recognition of choice for same-sex couples is important, it is also essential that they can live without the fear of illegitimacy in the most fundamental aspects of life.The petitions brought forth in the Supreme Court of India in October 2023, focussed not solely on the right to marry, but also on the personal autonomy that any individual within the republic seeks to achieve. For many, the inheritance of this autonomy is a birthright, but others have been excluded from this privilege due to their orientation or identity, which deviates from what is considered the "norm".The marriage equality petitions prodded the Indian judiciary and society on the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding a set of individuals from the right. Decriminalisation was a significant step, but whether it has translated into actual legal protection remains uncertain.The petitions for marriage equality aimed at addressing this gap and ensure that legal protections are firmly established. But on 17 October 2023, a five-judge bench, led by Chief Justice of India DY Chandrachud, categorically refused to grant marriage equality to LGBTQIA+ individuals, stating that the responsibility to create such a law lies with Parliament. However, the bench was divided 3:2 on the issues of adoption and civil unions.Article 145 of the Indian Constitution grants the power to the apex court to review any judgment pronounced or an order made by it. This provision acknowledges the inherent possibility of errors in judgments, allowing petitioners to request a review. According to the Supreme Court Rules, 2013 (XLVII.2), a review petition must be filed within 30 days of the judgment being contested.Soon after the marriage equality verdict, multiple petitions were filed for a review, which is yet to be heard on its merits. The question of whether the hearing will be conducted in open court rather than in chambers, as has been the process in case of review petitions, along with the recusal of Justice Sanjiv Khanna from the five-judge bench, has created a situation where further delays are expected.The majority opinion in the five-judge bench focussed on how it will need a lot of work to create a parallel system to sanction civil unions for same sex couples.Justice S Ravindra Bhat opined that the state was not constitutionally obliged to recognise and provide for such a framework. However, the petitions did not delve into the realm of personal laws; instead, they sought directives for the executive to address the non-inclusive aspects of the Special Marriage Act and advocate for the right of same-sex couples to adopt children.The concern raised with the Special Marriage Act, 1954 and The Foreign Marriage Act, 1969, is that solemnisation and registration under the act extend to marriages regardless of the respective partners’ gender, sexual orientation, and sexual identity.The lack of autonomy and privacy while declaring the intent to marry and the public display of information in the office of Registrars during the notice period needs to be addressed without further delay.In 2009, the Delhi High Court's verdict in the Naz Foundation v Govt of NCT of Delhi case had decriminalised queer relations. But, in the 2013 Suresh Kumar Koushal & Anr v NAZ Foundation & Ors case, a two-judge Supreme Court bench comprising GS Singhvi and SJ Mukhopadhaya overturned this verdict and reinstated Section 377 of the Indian Penal Code.It was finally in 2017 that following several curative petitions, the Supreme Court decided to revisit this judgment. Consequently, in 2018, a five-judge bench in Navtej Singh Johar v Union of India overturned the previous decision, decriminalising homosexuality once and for all.The hope with the review petitions is also that they take at least one step at a time in the forward direction. The journey has been long, and those who have suffered the most are the ones who first had to reconcile with their identities and desires. Now, they seek the same autonomy and protection granted to everyone else too.In 2015 Obergefell v Hodges case, Justice Kennedy had rightfully concluded in this context that:“No union is more profound than marriage, for it embodies the highest ideal of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfilment for themselves. Their hope is not to be condemned to live in loneliness, excluded form one of civilisation's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”(Tahini Bhushan is partner at Tatvika Legal, a full service law firm based out of Delhi-NCR. The views expressed are the author’s own.This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)

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Marriage Equality Review Petition: One Step Forward Towards Dignity Of Choice

Same-sex couples should be able to live without the fear of illegitimacy in the most fundamental aspects of life.

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Topics: Supreme Court Same-sex marriage Marriage Equality