On Tuesday, the Supreme Court of India declined a request for an open court hearing on a review petition challenging its previous judgment that refused to legally recognize same-sex and queer marriages. The decision was made by a bench led by Chief Justice DY Chandrachud, who clarified that constitution bench reviews are conducted in chambers rather than in open court.
The review petition, highlighted by senior Advocate NK Kaul, sought an open hearing to challenge the October 17, 2023 judgment. This judgment had denied legal recognition of same-sex and queer marriages under various acts, including the Special Marriage Act (SMA) of 1954 and the Foreign Marriage Act (FMA) of 1969.
The Supreme Court will review the petition on July 10, with a five-judge bench comprising Chief Justice Chandrachud, and Justices Sanjiv Khanna, Hima Kohli, BV Nagarathna, and PS Narasimha. Justices SK Kaul and S Ravindra Bhat, who participated in the original judgment, have since retired and will be replaced by Justices Khanna and Nagarathna.
Multiple review petitions have been filed against the Supreme Court’s October 17 judgment, which declined marriage equality rights to queer couples. One notable petition, filed through advocates Karuna Nundy and Ruchira Goel, argues that the majority judgment contains significant legal errors and constitutes a grave miscarriage of justice.
The majority judgment, delivered by Justices SR Bhat, Hima Kohli, and PS Narasimha, stated that there is no fundamental right to marry. It acknowledged the right of transgender persons to heterosexual marriage under existing laws but held that legal recognition of same-sex unions requires legislative action, not judicial intervention. Additionally, the judgment denied adoption rights to queer couples, upholding Regulation 5(3) of the CARA Regulations.
The petitioners argue that the majority judgment misinterprets their request, which seeks to extend existing marriage laws to same-sex couples rather than create a new institution. They also contend that the judgment fails to protect children adopted by unmarried couples, contrary to established legal principles.
The petition highlights the significant consequences of the majority judgment on the lives and relationships of queer couples, including their children, who remain without legal protection. It calls for urgent scrutiny and reconsideration by the Supreme Court to rectify what it describes as a sweeping miscarriage of justice.
The petitioners seek to have the earlier order set aside and advocate for the application of Sections 15-18 of the Special Marriage Act to include non-heterosexual marriages. This approach, they argue, would recognize the constitutional rights of queer couples without requiring new legislative measures.
The outcome of the Supreme Court’s review on July 10 will be crucial in determining the future of marriage equality in India.