SC to hear review of same-sex marriage judgment on Nov 28, lawyers seek open court hearing

Same Sex Marriage Verdict review

Informing the court that the plea seeking review of the apex court's judgment on same-sex marriage is listed for a November 28 hearing, lawyers representing the petitioners, on November 22, asked the Chief Justice of India (CJI) to hear the case in an open court.

Review petitions and curative petitions are usually heard in the chambers of the judges and not in open court.

Senior advocate Mukul Rohatgi, who appeared for the petitioners told the CJI that all the five judges in the constitution bench agreed on the fact that the LGBTQ+ community is being discriminated against. He said, "If there is discrimination, there should be a remedy". Rohatgi also urged the judges not to delete the case from the list.

The CJI told the lawyers that he would consider the request after circulating the plea among other judges.

The review plea was filed by petitioner Udit Sood. Sood is a patent attorney working at a law firm in the United States of America. Speaking to Moneycontrol on the day the judgement was delivered, Sood had expressed feeling "devastated".

Noting that the queer community is used to setbacks, Sood further stated, “If anything, we are resilient, and we know how to take a beating, strategise, and move forward.” He said that the community would commiserate and discuss its next course of action.

According to the plea, which Moneycontrol has reviewed, “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".

Furthermore, it noted that the judgment is "self contradictory and manifestly unjust." The plea states that the judgment "effectively compels young queer Indians to remain in the closet and lead dishonest lives if they wish the joys of a real family."

On October 17, the Supreme Court refused to grant legal recognition to same-sex marriages, saying it was up to the Parliament to make laws to enable it. A constitutional bench of the Chief Justice of India (CJI) DY Chandrachud, and Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha had delivered the verdict. The ruling came five years after a historic 2018 judgment when the apex court scrapped a colonial-era ban on homosexuality.

The apex court had said the law does not recognise the right to marry or the right of same-sex couples to enter into civil unions until the Parliament frames laws enabling the same. It had, however, recognised equal rights for queer people and their protection. It also advocated for the sensitisation of the general public in order to prevent queer people from facing discrimination.

It was a 3:2 judgment on various points including adoption. Justice Kohli, Bhat, and Narasimha were on one side, while Justice Chandrachud and Kaul were on the other.