Same-sex marriage: Plea in Supreme Court seeks review of October 17 verdict

Supreme Court/ File pic

A petition has been filed with the Supreme Court requesting a review of its October 17 verdict, which denied legal recognition to same-sex marriage stated a report by PTI. The petitioner, Udit Sood, asserts that the majority judgment recognized discrimination against queer couples but failed to address it adequately, the report further added.

According to the PTI report, the review plea has been submitted to the top court registry, It argues that the previous judgment contains apparent errors and is self-contradictory and unjust.

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The majority judgment, led by retired Justice S Ravindra Bhat, acknowledges that the respondents (the Centre and others) were violating the fundamental rights of the petitioners through discrimination but did not take sufficient action to rectify this.

"The Petitioners respectfully submit that this Court ought to review and correct its decision because the impugned judgment suffers from errors apparent on the face of the record and is self-contradictory and manifestly unjust," the report cited the plea.

The review petition criticises the majority view of Justices Bhat, Hima Kohli, and PS Narasimha, contending that it limits the court's jurisdiction and the ability to end discrimination, the report stated.

The plea points out an "abdication of duty" entrusted to the court by the Constitution, as well as a lack of alignment with the Constitution's principles. The review is also prompted by the majority judgment's declaration that the Constitution of India does not guarantee fundamental rights to marry, form a family, or establish a civil union.

"With respect, the majority judgment neuters this Court's jurisdiction, holding that while 'recognition' of discrimination and violation of the petitioners' fundamental rights 'is this court's obligation, falling within its remit', separation of powers prohibits this court from enjoining the discrimination or otherwise protecting those fundamental rights," the plea said.

The review plea underscored the role of the court in upholding fundamental rights and highlights the need to review and correct the previous judgment to ensure the protection of these rights for queer Indians.

"The majority judgment warrants review because it summarily disregards the foregoing authority to make the chilling declaration that the Constitution of India guarantees no fundamental right to marry, found a family, or form a civil union." Assailing Justice Bhat's view, the plea said the majority judgment is also self-contradictory in its understanding of 'marriage'. It acknowledges that the Special Marriage Act, 1954 (SMA) confers the 'status' of marriage, observing that the Act 'in fact created social status or facilitated the status of individuals in private fields' and that the Parliament 'has intervened and facilitated the creation of social status (marriage) through SMA'," the plea said.

The plea also stated, referring to a 1963 verdict, "Our constitution primarily tasks this court-not the respondents (Centre and others) - with upholding fundamental rights. 'This Court has no more important function than to preserve the inviolable fundamental rights of the people'."

The previous verdict by a five-judge constitution bench on October 17 refused to grant legal recognition to same-sex marriage under the Special Marriage Act, leaving it to Parliament's discretion to change the law to validate such unions. However, it also included directions to prevent discrimination based on gender identity or sexual orientation.