The Supreme Court was moved on Wednesday seeking the review of its October 17, 2023, five-judge constitution bench judgment refusing legal recognition to marriage between same sex couples or civil union, and stating that the right to marry is not a fundamental right and it cannot read into the Special Marriage Act (SMA) words that would amount to judicial legislation.

The top court by a majority of 3:2 had declined the plea seeking legal recognition of same sex marriage.  Justice Ravindra Bhat (since retired) along with Justice Hima Kohli and Justice Pamidighantam Sri Narasimha had delivered the majority  view rejecting the plea,  while Chief Justice DY Chandrachud and Justice Sanjay Kishan Kaul by separate judgments favoured a “civil union” of same sex couples.

The review petition has been moved by one of the 21 petitioners who had approached the top court seeking legal recognition to the same sex marriage as a step further to September 6, 2018, top court judgment decriminalising the gay sex.

Normally, the review petition is  considered by the same bench which had delivered the judgment  which is sought to be  relooked, but in the instant case, as and when the review plea will be taken up a new bench will be formed to include a judge  in place of Justice Ravindra Bhat who had retired on October 20, 2023.

Seeking an open court hearing, the petitioner seeking the review of October 17 judgment has said that the majority Judgment is “facially erroneous” because it finds that the Respondents are violating the Petitioners’ fundamental rights through discrimination, and yet fails to enjoin the discrimination.

“It is … submitted that for a Constitutional Court to specifically identify discrimination; but fail to grant appropriate remedies, is an abdication of its responsibility under the Constitution of this country,” says the petition.

“Nonetheless, the Majority Judgment fails to take the logical next step of prohibiting the discrimination. It instead invites the Respondents “to consider such impacts, and make necessary recommendations,” says the petition seeking the review of the majority judgment.

It further says that “whether this will happen through proactive action of the State itself, or as a result of sustained public mobilization – is a reality that will play out on India’s democratic stage, and something only time can tell.”

Stating that the majority judgment is manifestly unjust because it countenance animus-motivated deprivation of the Petitioners’ fundamental rights – the petition says that the “majority judgment is self-contradictory in its understanding of “marriage.”

In a disappointment to the LGBTQIA+ community, the Supreme Court had on October 17, 2023, had refused legal recognition to same sex marriage (SSM) and civil union, stating that the right to marry is not a fundamental right and it cannot read into the provision of the Special Marriage Act (SMA) words that would amount to judicial legislation.

Though there were four judgments by the Chief Justice DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat and Justice Pamidighantam Sri Narasimha, the common thread of all was that the provision of SMA cannot be interfered with or words therein be read differently to include non-heterosexual couples within its fold.

Refusing to interfere with the provisions of SMA, a constitution bench had however, said that the queer couples have a right to cohabit without any threat or coercion to their life. under Article 21.

The majority of Justice Bhat, Justice Kohli and Justice Narasimha had overruled both Chief Justice Chandrachud and Justice Kaul and held that the   non-heterosexual couples cannot be granted the right to jointly adopt a child.

Disagreeing with the CJI on the right of queer couples to adopt and voicing certain concerns, Justice Bhat had said, “Therefore, it is our considered opinion that to create an overarching obligation upon the State to facilitate through policies the fuller enjoyment of rights under Article 19 and 25, is not rooted in any past decision, or jurisprudence. That queer couples have the right to exercise their choice, cohabit and live without disturbance – is incontestable.”