The Supreme Court judgment on same-sex marriage compels queer couples who wish the joys of a real family to remain in the closet and lead dishonest lives, a review petition said.
The petition seeks a review of the top court’s majority judgment refusing to legalise same-sex marriage. The judgment concludes queer partners suffer from the indignity of discrimination in their everyday lives, but then turns them away with best wishes for the future, Udit Sood, a petitioner, said.
On October 17, the Supreme Court said it did not want to leave the constraints of judicial power to encroach into the legislative domain of the Parliament. It said the Parliament was the ideal forum to debate and pass laws, or not, on the question of conferring legal status to same-sex marriage.
A majority of the three judges on the Constitution Bench disagreed with the view of Chief Justice of India D.Y. Chandrachud that the government should at least grant a ‘civil union’ status to same-sex partners, saying such a concept was not backed by statutory law.
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‘Contradictions in majority verdict’
The review petition contended the majority judgment contradicted itself in several fronts.
For one, the Constitution Bench had said the Parliament conferred social status for marriage as an institution under the Special Marriage Act of 1954. But, despite this finding, the Bench had finally settled on the opposite premise that the terms of marriage were largely set independent of the state, and the status of marriage was not conferred by the state.
The petitioners had urged the Constitution Bench to include same-sex marriage within the ambit of the 1954 Act.
The review petition emphasised that the right to marry was a fundamental right.
“No contract or forceful State action can curtail an adult’s fundamental right to marry,” the review petition said.
The review plea pointed out that the 1954 Act excluded same-sex marriages from its ambit at a period when homosexuality was a “vice” and a crime.
The petition noted that it was the Supreme Court itself which had decriminalised homosexuality. The majority judgment, the plea said, has fallen short of the constitutional obligations of the Supreme Court towards queer couples.
The petition said ideals of equal participation, dignity, fraternity remained fallacious for the queer community unless the judicially intervened to review its own judgment.
