India’s Supreme Court on Thursday (Nov 23) agreed to consider numerous petitions on November 28 which are seeking its October 17 judgment’s reconsideration that had not granted legal recognition to same-sex couples and stated that only the state legislatures and Parliament have the right to validate their marital unions.
The matter was mentioned before Chief Justice of India (CJI) Dhananjaya Y Chandrachud by senior counsel Mukul Rohatgi and the CJI was requested to ensure that the review petition is taken up before five judges for consideration on November 28, which is the tentative date given by the court registry.
Various other lawyers, who had appeared earlier in the matter, were also present when the request was made by Rohatgi.
“We have also sought an open court hearing. It is tentatively listed on November 28. Let it not be deleted. Apart from this, majority or minority, both views have held that there is a discrimination (against LGBTQ+ couples). If there is discrimination, there also has to be a remedy. This is why we have pressed for an open court hearing,” Rohatgi stated.
Responding to the request, the CJI stated that he would go through the review petitions and that they would consider appropriately the lawyers’ plea for an open court hearing.
A review petition generally comes before the same panel of judges and gets circulated in their chambers and a decision is taken without an open court hearing. However, if some merit is found by the judges in the review plea, they are free to allow an open court hearing and oral arguments.
Justice S Ravindra Bhat, who was among the five judges who were part of the same-sex marriage bench, retired on October 20 which meant that the CJI needed to add a new judge to the bench for the review petitions.
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CJI to assign date for consideration of review petitions
The CJI will assign a date for considering the review petitions. The judgement given by the Supreme Court on October 17 by a 3-2 majority had refused to give legal sanction to same-sex marriage and also did not grant constitutional protection to civil unions as well as adoption rights for queer couples while stating that giving the State the mandate to grant recognition or legal status to some unions will be a violation of the doctrine of separation of powers.
Watch: Same-sex marriage: India’s top court refuses to legalise same-sex marriage
In the petition filed through Karanjawala & Co by US-based lawyer Udit Sood and 51 other petitioners, Sood said, “The majority ruling is self-contradictory, facially erroneous and deeply unjust. The majority found that queer Indians endure severe discrimination at the hands of the State, declared that discrimination must be prohibited, and then did not take the logical next step of enjoining the discrimination.”
“Our Constitution primarily tasks this Hon’ble court — not the respondents (Centre) — with upholding fundamental rights. To find that the petitioners are enduring discrimination, but then turn them away with best wishes for the future, conforms neither with this Hon’ble court’s constitutional obligation towards queer Indians nor with the separation of power contemplated in our Constitution,” the petition added.
(With inputs from agencies)
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