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Petitioners for Marriage Equality Want an Open Court Hearing on Their Review Petition; CJI Agrees To Take Into Account

In an urgent appearance before the Supreme Court on Thursday, Senior Counsel and former Attorney General Mukul Rohatgi requested an open court hearing on the review petitions contesting the ruling of the high court in the same-sex marriage case.

Chief Justice of India DY Chandrachud led a bench that Rohatgi informed of the need for the review petitions to be heard in public because the Constitution bench that rendered the decision had refused relief even though every member of the bench had agreed that denying same-gender couples the right to marry amounted to discrimination against them.

“Every judge acknowledges the existence of discrimination… If discrimination occurs, a solution must be found. Many people’s lives are dependent. We have pushed for a public court proceeding. The listing date is set for November 28. We want an open court proceeding,” he declared.

According to CJI Chandrachud, he will review the request and answer calls. “We’ll examine it and make a determination,” the CJI replied. The Supreme Court typically hears review petitions in chamber without the participation of solicitors for oral arguments. Nonetheless, in extraordinary circumstances, particularly in instances involving the death penalty, they are heard in public.

On October 17, a Constitution Bench consisting of Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, together with Chief Justice of India (CJI) DY Chandrachud, decided against the recognition of same-sex weddings. The Court had declared that the right to marry and the right of same-sex couples to form civil unions are not recognised by the law as it stands today and that the Parliament should enact legislation granting these rights.

The Court further ruled that same-sex couples’ rights to adopt children are unrecognised by the law. Justices Bhat, Kohli, and Narasimha issued the majority opinion, and Justice Narasimha offered a separate concurring opinion. Judge Kaul and CJI Chandrachud have each issued dissenting opinions in their own cases. The judges all agreed that same-sex couples could not assert that marriage is a basic right since there is no unqualified right to marriage. 

Additionally, the Court unanimously rejected the challenge to the Special Marriage Act’s provisions. The majority of Justices Bhat, Kohli, and Narasimha also stated that same-sex couples cannot claim the right to adopt children and that civil unions between them are not recognised by the law. In contrast, same-sex couples are entitled to have their relationships recognised as civil unions and to receive any ensuing advantages, according to rulings made by Chief Justice Chandrachud and Justice Kaul in their respective minority views. In this context, they had also declared that these couples were entitled to adopt children and had overturned adoption laws that stopped them from doing so.

Ahir Mitra
Ahir Mitra

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