Read Time: 08 minutes

Synopsis

The review petition filed before the Supreme Court challenging its recent judgment refusing to provide legal recognition to same sex marriages states the impugned verdict suffers from errors apparent on the face of the record and is self-contradictory and manifestly unjust.

Filed under Article 137, the plea states that the Majority Judgment of Justices S Ravindra Bhat, PS Narasimha and Hima Kohli is facially erroneous because it finds that the Respondents are violating the Petitioners’ fundamental rights through discrimination, and yet fails to enjoin the discrimination.

"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" lamenting 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.”", the plea submits.

It has been further submitted that the Majority Judgment is self-contradictory in its understanding of “marriage”.

Court has been told that the majority view overlooks that marriage, at its core, is an enforceable social contract. "The right to so contract 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", review petition submits.

A further submission is made that the Majority Judgment erroneously likens the instant case to a petition for “the construction of a road” to enforce the right to travel, or creation of “a platform” for a “poet who wishes to share their work” when in fact, here, the Respondents have constructed the metaphoric road and poetry platform—only that homosexuals are barred from both because the Respondents think homosexuals are inherently a problem.

"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. It is fallacious that, under these facts, and in the absence of a fundamental right to marry or form a union, the rights to equal protection, dignity and fraternity are insufficient to justify judicial intervention", court has been told.

In a landmark verdict delivered two weeks back, the Supreme Court of India had held that no fundamental right to marry can be found under the Indian Constitution.

A five judge Constitution bench led by Chief Justice of India has left it on the Union to constitute an High Powered Committee headed by the Cabinet Secretary for this purpose to look into the aspects of queer relationships.

Court had further remarked that in the exercise of the power of judicial review, it must be careful not to tread into the legislative domain.

"The Court in the exercise of the power of judicial review must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain", it has held.

The Constitution bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, PS Narasimha and Hima Kohli has been seized with the same-sex marriage petitions since the hearing began on April 18.

Notably, the bench has recognized transgender marriages to be recognized under the laws prevailing in the country. On the aspect of Special Marriage Act and the challenge to its provisions, it has been held that they cannot be held to be unconstitutional and the court cannot read words into its provisions as well.

This Constitution bench of Supreme Court on May 11, 2023 had reserved its verdict in the plea’s seeking legal recognition of same sex marriage, after having heard the parties over ten days.

Case Title: Udit Sood and Ors vs. Union of India