Same-sex judgment compels queer Indians to remain in closet: Review petition in Supreme Court

A review petition was filed before the Supreme Court on Wednesday challenging the correctness of the apex court's verdict that refused to recognize the right of same-sex couples to enter into marriages or have civil unions..A Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha had on October 17 ruled against recognising same-sex marriages.The Court had stated that the law as it stands today does not recognize the right to marry or the right of same-sex couples to enter into civil unions, leaving it up to the Parliament to make laws enabling these rights.The Court had also held that the law does not recognize the rights of same-sex couples to adopt children. The majority opinion was delivered by Justices Bhat, Kohli, and Narasimha, with Justice Narasimha delivering a separate concurring opinion. CJI Chandrachud and Justice Kaul had delivered separate dissenting judgments..Four petitioners have now filed a review petition asserting that the Supreme Court abdicated its duty under the Constitution of India to uphold fundamental rights. Their plea underscores that while the Supreme Court concluded that queer Indians were facing discrimination, it simply turned them away with "best wishes for the future.""The majority judgment effectively compels young queer Indians to remain in the closet and lead dishonest lives if they wish the joys of a real family," the plea states. .Below are the five grounds under which some of the petitioners in the case, Udit Sood, Saattvic, Lakshmi Manoharan, and Gagandeep Paul, have sought a review of the top court's verdict..Court declined to interpret Special Marriage Act (SMA) in a manner consistent with fundamental rightsThe Court declined to interpret the Special Marriage Act (SMA) in a manner consistent with fundamental rights. The petitioner has argued that CJI DY Chandrachud, in his dissenting opinion, rightly observed that the majority judgment contradicted itself when it held that the SMA was not discriminatory and then found that the State indirectly discriminated against the queer community.The Act was enacted with the objective of providing a framework for "any two persons" to marry. Therefore, the artificial classifications based on sexual orientation cannot further the State's objective and are violative of Articles 14 and 15 of the Indian Constitution, the plea states..Court failed to recognise the right to a civil union for same-sex couples as an option instead of allowing them to marryAccording to the review petition, the majority judgment erred in concluding that the directions in the minority judgment, which recognized civil unions for non-heterosexual couples, amounted to the creation of a social institution.The plea argues that these directions only give effect to fundamental rights and points out that while the majority opinion recognized that queer persons have a right to a relationship under Article 21, it prescribed no obligation on the State to recognize such relationships and the rights that would flow from them..Court acknowledged discrimination faced by the queer community but failed to remedy itThe petition refers to Justice Bhat's opinion where he acknowledged that the denial of benefits to queer couples must be addressed. Despite that, the Court abdicated its Constitutional duty to pass appropriate directions to remedy the discrimination, leaving such remedy to the legislature and the government, effectively denying relief to the petitioners due to the marginalized nature of their community and the stigma they endure."To leave such remedy to the legislature and the government, is to effectively deny any relief to the petitioners, given the marginalised nature of their community and the stigmas from which they suffer," it states..Court erred in declaring there is no fundamental right to marryWith regard to the contradictory nature of the verdict, the plea states that the Court acknowledged that the Special Marriage Act (SMA) confers a "status" of marriage. Yet, it later concluded that the terms of marriage are determined independently of the State, and that the "status" is not conferred by the State. The petition emphasizes that marriage is, at its core, an enforceable social contract, available to anyone capable of consenting."Marriage, at its core, is an enforceable social contract. The right is available to anyone capable of consenting. Adults of any faith or no faith-may engage in it. 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," it says..Court failed to grant adoption rights to non-heterosexual couplesThe majority opinion refused to declare regulation 5(3) of Central Adoption Resource Authority (CARA) Regulations as void.The regulation states that a couple cannot adopt a child unless they have been in a stable marital relationship for two years except in cases of relative or step-parent adoption.The plea highlights that the majority opinion once more erred by noting discrimination but leaving it the State to remedy it.