Petition submitted to Indian SC requesting review of its decision that failed to legally recognise same-sex marriages

A petition has been presented to the Indian Supreme Court, urging a reconsideration of its decision from October 17, which failed to legally recognize same-sex marriages, leaving many LGBTQ rights activists deeply disappointed. The petition contends that while the majority judgment acknowledged discrimination against same-sex couples, it failed to take action to rectify that discrimination.

Anjali Gopalan from the Naz Foundation, who has been actively supporting the LGBTQ community, expressed, “I don’t expect the court to reverse its own judgment. That happens very rarely.”

The review petition filed by Udit Sood stated, “The Petitioners respectfully submit that this Court ought to review and correct its decision in… because the impugned judgment suffers from errors apparent on the face of the record and is self-contradictory and manifestly unjust.”

“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 petition added.

This follows the landmark 3-2 judgment in which the apex court opted not to legalize same-sex marriage and called upon the union government to establish a committee to examine the rights that can be granted to LGBTQ couples.

The review petition also argued that the court must be responsible for ensuring that people’s fundamental rights are upheld.

Referencing a prior 1963 verdict, the petition stated, “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 petition contended that the majority judgment presented a self-contradictory interpretation of ‘marriage’ since the Special Marriage Act bestows marriage status while denying the right to same-sex marriage.

While the court rejected the legal validation of same-sex marriages under the Special Marriage Act, it left the door open for Parliament to change the law on this matter.

Chief Justice DY Chandrachud issued a series of directions emphasizing the need to ensure non-discrimination against the LGBTQ+ community and raise public awareness about queer identity.

The Centre committed to establishing a committee chaired by the Union Cabinet Secretary to thoroughly examine issues related to LGBTQ+ rights.

Previously, the petitioners achieved a significant victory in 2018 when the Supreme Court decriminalized consensual same-sex relations. However, they continue to advocate for the legalization of same-sex marriages and associated rights, including adoption.