New Delhi: The Supreme Court’s majority judgement in the same-sex marriage case shows “animus-motivated deprivation” of the queer community’s fundamental rights, states a review petition filed in court Wednesday against the order.
“The majority judgement effectively compels the young queer Indians to remain in the closet and lead dishonest lives if they wish the joys of a real family,” submitted the review petition accessed by ThePrint.
The court, in its 17 October verdict, held that the right to marry was not a fundamental right and it was not within its jurisdiction to interpret the Special Marriage Act (SMA) to grant legal recognition to same-sex marriages.
The five-judge bench, led by Chief Justice D.Y. Chandrachud, unanimously said it was the Parliament’s prerogative to recognise same-sex marriages. The other members of the bench were Justices S.K. Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha. The court had turned down the challenge to the provisions of the SMA.
By 3:2 opinion, the bench had also declined to recognise the queer community’s right to enter into civil unions and even adopt children. While Justices Bhat, Kohli and Narasimha gave this opinion, CJI Chandrachud and Justice Kaul delivered a dissenting view. The judgement was pronounced three days before Justice Bhat’s retirement.
According to Supreme Court rules, a review petition is heard in-chambers by the same bench which delivered the original verdict. However, with Justice Bhat not serving anymore as a judge of the top court, the CJI would have to appoint a new member to the bench. In case the new combination agrees to hear the review petition, the latter will likely be taken up in the open court.
Notably, the review petition extensively quotes Justice Bhat’s opinion, even though CJI Chandrachud and Justice Kaul had written detailed opinions on why the court was not empowered to grant legal recognition to same-sex unions under the SMA, which is a statutory law.
Also Read: SC firm on gay advocate Saurabh Kirpal’s Delhi HC appointment — ‘provide inclusion & diversity’
‘Constitution tasks court, not govt, to uphold rights’
According to the petition, filed by four members from the queer community, the majority judgment was erroneous because despite acknowledging that there was a violation of the petitioners’ fundamental rights through discrimination, it yet failed to prohibit discrimination.
Even though the majority opinion spoke of equality and non-discrimination as basic fundamental rights, it failed to take the logical next step of barring the discrimination, it submits.
Instead, the petition added, the court “invites the respondent (government)” to consider impacts of discrimination, leaving it to the latter to make necessary recommendations.
“It is respectfully submitted that this is an error apparent on the face of the record and an abdication of the duty entrusted to this Honourable Court by the Constitution of our country,” reads the review petition. The Constitution, it added, primarily tasks the court and not the government to uphold fundamental rights of citizens.
The second premise laid out in the review petition was the “self-contradictory” nature of the verdict in its understanding of “marriage”.
While the judgment acknowledges that the SMA confers the status of marriage, it at the same time renders an opposing opinion, it said.
According to the petition, the judgment holds that the terms of a marriage are largely set independently of the State and that the status of marriage is still not one that is conferred by the state.
In doing so, the petition asserts, the majority verdict overlooks that marriage, at its core, is an enforceable social contract. The right to such a contract is available to an adult who is capable of consenting, irrespective of the faith he/she/they may engage in.
“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,” contends the review petition.
Another point raised in the petition was the alleged disregard of the Universal Declaration of Human Rights, which was drafted in 1948 with India’s contribution.
This declaration, adopted by the United Nations, said that men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. The declaration informs Part III of the Indian Constitution in which fundamental rights are enshrined.
According to the review petition, the SC verdict summarily ignores the Universal Declaration of Human Rights to make the “chilling declaration that the Constitution of India guarantees no fundamental right to marry, found a family, or form a civil union”.
Further, the majority judgment, the plea added, “erroneously likens” the petitioners’ demand to a petition for “construction of road” to enforce the right to travel or creation of a “platform” for a poet who wishes to share their work.
Justice Bhat had cited the above two examples to emphasise his argument that the court cannot grant a bouquet of rights without a legislative framework to give effect to the rights emerging from a legal union in a same-sex marriage.
(Edited by Nida Fatima Siddiqui)
Also Read: ‘Very offensive’ — same-sex marriage petitioners slam Modi govt’s ‘psychology of child’ stand in SC