Supreme Court contemplates review of decision against same-sex marriage validation

A plea was raised on Thursday before the Supreme Court to review the October 17 decision which denied legal recognition to marriages between individuals of the same sex.

Senior advocate Mukul Rohatgi, representing one of the petitioners, highlighted the necessity for an open court hearing to address the grievances of those advocating for the validation of same-sex marriages. Chief Justice D Y Chandrachud, leading the bench along with Justices J B Pardiwala and Manoj Misra, acknowledged Rohatgi's submissions, stating, "I have not examined the (review) petition. Let me circulate it (among judges of that constitution bench)."

Rohatgi further conveyed that all judges on the constitutional bench acknowledged a form of discrimination against LGBTQ+ individuals and expressed the need for relief in this regard. The apex court registry indicated that the review plea was scheduled for consideration on November 28.

In early November, one of the petitioners approached the apex court seeking a review of the October 17 judgement. The constitution bench, presided over by the Chief Justice, had delivered separate verdicts on 21 petitions seeking legal validation for same-sex marriages.

While all five judges unanimously declined to provide legal sanction for same-sex marriages under the Special Marriage Act, they emphasised that it falls within Parliament's jurisdiction to modify the law to validate such unions. However, in a 3:2 majority decision, the court ruled that queer couples do not possess the right of adoption.

The verdicts, composed separately by the CJI and Justices Kaul, Bhat, and Narasimha, also declined to invalidate or modify the sections of the Special Marriage Act (SMA) to encompass non-heterosexual couples. However, the judges held contrasting opinions on the extent to which a court can intervene, despite acknowledging that queerness extends beyond an "urban, elitist concept" and necessitates state protection for such couples. While the CJI and Justice Kaul asserted that the constitutional right of queer couples to form a union should be safeguarded and that the State is obligated to acknowledge these civil unions and provide them legal benefits, including adoption rights, the remaining three judges disagreed with this perspective.