'Not Protecting Queer Couples Despite Acknowledging Discrimination Is Abdication' : Review Petition Against Supreme Court Verdict

A review petition has been filed in the Supreme Court against its judgment in Supriyo v. Union of India which refused to legalise same-sex marriages.The review petition, filed by four petitioners (Udit Sood, Saatvic, Lakshmi Manoharan and Gagandeep Paul), faults the judgment for not affording any legal protection to queer couples despite acknowledging the discrimination faced by them. This, the review petitioners argue, amounts to abdication of the Court's duty to uphold and protect fundamental rights.In the review petition, it has been argued that judgment suffers from "errors apparent on the face of the record" and is "self-contradictory and manifestly unjust". The Court recognises that the Petitioners' fundamental rights are being violated by the State through discrimination, but fails to take the logical next step of prohibiting this discrimination.“To find that the Petitioners are enduring discrimination, but then turn them away with best wishes for the future, conforms neither with this Hon'ble Court's Constitutional obligation towards queer Indians nor with the separation of powers contemplated in our Constitution” the review petition states. The review petitioner argues that the majority judgment ‘neuters’ the Supreme Court’s own jurisdiction, holding that while recognition of discrimination and violation of the Petitioners' fundamental rights "is this court's obligation, falling within its remit", separation of powers prohibits it from protecting those fundamental rights.“Our Constitution primarily tasks this Hon'ble Court-not the Respondents (State) with upholding fundamental rights.” the plea argues."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" the plea states. Main Grounds Urged In Review Petition1. Declining To Interpret The Special Marriage Act, 1954 In A Manner Consistent With Part III Of The Constitution The review petitioner argues that the judgment suffers from an error apparent on the face of the record in its rejection of the plea of the Petitioners that the Special Marriage Act, 1954 is discriminatory and that its provisions ought to be read neutral to gender and sexual orientation, so as to extend its benefits to the LGBTQ+ community. The Majority Judgment has wrongly concluded that the exclusion of non-heterosexual couples from the fold of the SMA does not render it discriminatory.The review petitioner relies on the dissenting opinion of Justice S.K. Kaul wherein he held that if the intent of the SMA was to facilitate inter-faith marriages, then there would be no rationale nexus with the classification it makes i.e., excluding non-heterosexual relationships. In his minority judgment he has held that the SMA is violative of Article 14.“..the Majority Judgment incorrectly relies on the principle that under-classification or under-inclusion is not per se discriminatory, as a rationale to justify the conclusion that the Special Marriage Act, 1954 is not discriminatory,” the plea argues.That Court wrongly analyzed that the sole intention of the SMA was to enable the marriage of heterosexual couples belonging to different faiths, the review petitioner argues. "..the Special Marriage Act, 1954 was enacted with the object and purpose of providing a progressive and secular legal framework for "any two persons" to solemnise their marriage under the law, irrespective of societal prejudices and archaic beliefs. The fact that it was aimed to allow any two persons to marry is substantiated by the fact that it covers within its ambit, the marriage of any two persons even of the same faith and is not restricted to inter-faith couples," the plea states. 2. Failure To Recognise The Fundamental Right To A Civil Union For Non Heterosexual Couples, In the Alternative To Granting The Right Of MarriageThe plea urges that the Court at the very least, ought to have recognised and declared the fundamental right of non-heterosexual couples to enter into a civil union. This may be operationalized by allowing registration of queer relationships under Sections 15 and 16 of the Special Marriage Act, 1954, or Section 18(f) of the Registration Act, 1908, the plea suggests.The plea states that the verdict erred in concluding that one cannot approach the Apex Court to seek enforcement of unenumerated fundamental rights. “This view turns the clock back on the rich jurisprudence that the Courts of this country have developed on Part III of the Constitution,” the plea states.While the Majority Judgment recognises that Queer persons have a "right to relationship" which falls within the ambit of Article 21, it prescribes no obligation on the State to recognise such relationships and the rights that would...

'Not Protecting Queer Couples Despite Acknowledging Discrimination Is Abdication' : Review Petition Against Supreme Court Verdict

Sheryl Sebastian

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