By a vote of 3-2, the ruling on October 17 rejected the legalization of same-sex unions and denied civil unions constitutional protections as well as rights to adoption for gay couples.
The Supreme Court agreed to reconsider its October 17 decision, which denied same-sex couples legal recognition and declared that only state and federal legislatures may formally recognize a couple’s marriage, in response to a number of petitions on Thursday.
Senior lawyer Mukul Rohatgi brought up the matter before Chief Justice of India Dhananjaya Y Chandrachud, requesting that the CJI ensure that the review petition is heard by five judges on November 28, the tentative date established by the court registry.
When Rohatgi made the motion, there were also a number of other attorneys present who had previously appeared in the case.
Additionally, we’ve asked for an open court hearing. The tentative listing date is November 28. Please do not remove it. Aside from this, both the majority and minority opinions have maintained that discrimination exists (against LGBTQ+ couples). In the event of discrimination, a remedy must also be provided. Rohatgi said, “We have pressed for an open court hearing” because of this.
In response, the CJI stated that he still needed to evaluate the review petitions and that the attorneys’ request for an open court hearing will be duly taken into account.
Through circulation in their chambers, a review petition is brought before the same group of justices and is typically decided without a public hearing. The judges may allow oral arguments and an open court hearing in the event that they conclude the review plea has merit.
(Image Source : The Indian Express)
One of the five justices on the same-sex marriage bench, Justice S Ravindra Bhat, retired on October 20. In order to handle the review petitions, the CJI will have to appoint a new judge to the bench. The CJI is in charge of determining the date for the judges’ chambers review plea consideration because they are the masters of the roster.
The notion that same-sex marriage should be permitted by law was rejected by the 3-2 majority that signed the October 17 verdict. It also rejected the notions that gay couples should be permitted to adopt children and that civil unions ought to be protected by the constitution.
The ruling noted that forcing the government to recognize or legalize certain types of unions would go against the theory of separation of powers and might have unintended consequences.
According to Justices S Bhat, Hima Kohli, and PS Narasimha, the right to a civil union cannot be considered a constitutionally protected right in the absence of the right to marry receiving the same protection.
CJI Chandrachud and justice Sanjay Kishan Kaul ruled in favor of civil union recognition and adoption rights, which is widely regarded as the first step towards granting full marriage equality.
One of the 52 petitioners requesting marital equality in India, US-based lawyer Udit Sood, filed the case’s initial review petition on November 1. He claimed that the majority judgement of the court was “manifestly unjust” and “self-contradictory,” failing to protect the rights of the LGBTQIA+ community despite acknowledging its struggles.
Abhay Dang and Supriya Chakravarty also filed a motion with the top court asking for a reconsideration of the ruling from October 17. They argued that constitutional courts are independent of legislative action in recognizing same-sex marriage and have the power to review statutes to ensure they preserve fundamental constitutional values.
On October 17, the top court ruled unanimously that the right to marry was not a basic right and that the court lacked jurisdiction to compel the legislature to enact new laws defining queer partnerships and same-sex marriage.
The CJI, together with justices Kaul, Bhat, and Narasimha, separately authored the opinions. They refused to interpret the Special Marriage Act (SMA) in a way that would have protected non-heterosexual couples, or to repeal or modify its provisions.
