The Supreme Court on Thursday agreed to hear a batch of petitions challenging the Constitution Bench judgement of the Apex Court, which refused to grant legal recognition for queer marriages in India.
The matter was mentioned by Senior Advocate Mukul Rohatgi, seeking an urgent hearing on the same.
Noting that the matter was listed for November 28, the former Attorney general of India requested the Apex Court that it should not be deleted.
He submitted that the review petitions should be heard in open court since the Constitution bench which delivered the verdict had denied relief despite all the judges on the bench agreeing that denial of right to marriage between persons of same gender amounted to discrimination against such persons.
He said that if there was discrimination, then there has to be a remedy. Lives of a large number of people depended on the verdict, added the Senior Advocate.
The Bench led by Chief Justice of India DY Chandrachud observed that it had not gone through the petitions.
The Apex Court said that it would look into the pleas and then decide.
The review petitioners argued that the verdict amounted to abdication of the Court’s duty to uphold and protect fundamental rights.
One of the pleas submitted that the verdict suffered from ‘errors’ apparent on the face of the record, calling it ‘self-contradictory’ and ‘manifestly unjust’.
It said the Apex Court recognised that the petitioners’ fundamental rights were being violated by the State through discrimination, but failed to take the logical next step of prohibiting this discrimination.
On October 17, the Constitution Bench of five judges, in an unanimous verdict, had refused to grant legal recognition to same-sex marriages, while holding that same-sex couples were not be discriminated against or harassed.
The Apex Court was divided over granting adoption rights to homosexual couples with a 3:2 verdict against giving such entitlement.
The Bench was unanimous also in saying that the right to marry cannot be given the weightage of a fundamental right.
It held that the law did not recognise the right to marry or the right of same-sex couples to enter into civil unions till the Parliament made laws enabling the same.
The CJI said that he has dealt with the issue of judicial review and separation of powers. The Doctrine of separation of powers meant that each of the three organs of the state performed distinct functions. No branch could carry out any others’ function, he added.
The Apex Court said that the Union of India suggested that this Court would violate the doctrine of separation of powers if it determined the list. But the doctrine of separation of powers did not bar the power of judicial review, it added.
The CJI said that queerness was neither urban nor elitist. Summing up, he said that the Apex Court was recording the statement of the Solicitor General that the Union Government would constitute a committee to decide on the rights and entitlements of persons in queer unions.
“As per the CJI, the Government of India should proceed with its committee, headed by the Cabinet Secretary, to address the raft of concerns of same-sex couples, including ration cards, pension, gratuity and succession.
Justice Bhat put forward his views, saying that the Court cannot create a legal framework for queer couples as the duty for the same lies with the legislature, noting that several aspects have to be taken into consideration.
Justice Bhat added that denial of benefits such as PF, ESI, pension etc to queer partners may have an adverse discriminatory effect.
The Judge said that addressing these concerns meant a range of policy choices, which involved a multiple legislative architecture.
Justice Bhat said that he, along with other on board judges, agreed with the CJI on the right of transgender persons in heterosexual relationships to marry as per existing laws.
Justice Bhat said that he had the benefit of perusing the concurring opinion of Justice Narasimha and endorse it fully.
Justice Narasimha said that it would not be constitutionally permissible to recognise a right to civil union mirroring a marriage.
Justice Narasimha agreed with the views of Justice Bhat on the constitutionality of the Central Adoption Regulatory Authority (CARA) regulations, while CJI Chandrachud disagreed to the same.
On CARA regulations, CJI Chandrachud said that while the Union of India has not proved that precluding unmarried couples from adopting was in the best interest of the child, CARA has exceeded its authority in barring unmarried couples.
He said the differentiation between married and unmarried couples has no reasonable nexus with CARA’s objective – the best interests of the child. It cannot be assumed that unmarried couples are not serious about their relationship.
CJI Chandrachud said that there was no material on record to prove that only a married heterosexual couple can provide stability to a child.
He observed that CARA Regulation 5(3) indirectly discriminated against atypical unions. A queer person can adopt only in an individual capacity. This has the effect of reinforcing the discrimination against queer community.
The CJI said that the law cannot assume that only heterosexual couples can be good parents. This would amount to discrimination. So the adoption regulations were violative of the Constitution for discrimination against queer couples.
As a result, the CARA circular was violative of Article 15 of the Constitution.
The CJI said he has a disagreement with the judgment of Justice Bhat.
He said contrary to Justice Bhat’s judgment, directions in my judgment does not result in the creation of an institution, rather they give effect to the fundamental rights under Part 3 of the Constitution.
As per the CJI, Justice Bhat also acknowledged that the State was discriminating against the queer community, but didnot exercise the powers under Article 32 to alleviate their plight, he added.
The CJI also noted that Justice Bhat had failed to ascertain if the CARA regulation was discriminatory.
Justice Narasimha added that the impact of the legislative framework in this case required a deliberative exercise and for the same, the legislature waentrusted to do so constitutionally.
This judgement was challenged by way of review petitions.
The first review petition was filed on November 1 by Udit Sood, one of the petitioners in the original case.
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