In a groundbreaking move, legal partners Utkarsh Saxena and Ananya Koti have launched a review petition against the recent Supreme Court decision in the case of Supriyo v. Union of India. The verdict, rendered by a 5-judge bench on October 17, 2023, declined to legalize same-sex marriages, prompting Saxena and Koti to challenge the court’s understanding of their case.
The petition argues that the court, in denying equal access to marriage for queer couples, contradicts its previous commitment to ensuring equal moral membership for queer individuals, as established in the Navtej Johar vs Union of India case. The heart of their petition is a plea for equality rather than the creation of a new legal status.
The review petition raises multiple crucial points, including the mischaracterization of the petitioners’ claim by the majority judgment. It contends that the court misunderstood the nature of the plea, interpreting it as a request for a new social/legal status rather than a demand for equal and non-discriminatory access to an existing legal status – marriage.
Furthermore, the petition challenges the court’s interpretation of the Special Marriage Act (SMA), asserting that the SMA is not limited to couples “belonging to different faiths” but is open to all couples seeking an alternative to their personal laws.
The review petitioners also dispute the court’s approach to remedies, arguing that once a court identifies unconstitutional discrimination, it cannot delegate the task of remedying it to an executive committee. They emphasize that the court’s discretion in deciding whether or not to remedy discrimination is inconsistent with the constitutional scheme.
A critical aspect of the challenge is the denial of adoption rights to same-sex couples. The petitioners argue that the court’s refusal to recognize queer marriages, coupled with denying adoption rights, perpetuates unconstitutional discrimination.
In the wake of the Supreme Court’s verdict on October 17, 2023, where the court unanimously held that there is no fundamental right to marry in India, this review petition challenges the interpretation of existing laws concerning same-sex marriages. The court, while recognizing the rights of transgender persons in heterosexual relationships to marry, denied queer couples the right to adopt children in a 3:2 decision.
The review petition, set to be heard on November 28, has been filed by a team of accomplished advocates, led by Shadan Farasat. Chief Justice of India DY Chandrachud has acceded to the request for an open court hearing, demonstrating the significance of this appeal in shaping the landscape of same-sex marriage rights in the country.
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