SC dismisses review plea seeking same-sex marriage, adoption, surrogacy for LGBTQ

The Supreme Court has dismissed a plea seeking review of its order which had rejected a petition seeking various civil rights such as same-sex marriage, adoption and surrogacy for the LGBTQ community.

A three-judge bench headed by Justice N V Ramana, in an in-chamber decision on July 11, dismissed the review plea filed by Tushar Nayyar which had sought grant of civil rights to the members of the LGBTQ (lesbian, gay, bisexual, transgender, transsexual, queer) community.

This review petition has been filed against order dated October 29, 2018 whereby the Writ Petition (of Nayyar) was dismissed.

"We have considered the review petition on merits. In our opinion, no case for review of order dated October, 29, 2018 is made out. Consequently, the review petition is dismissed on merits," the bench, which also comprised Justices S Abdul Nazeer and Deepak Gupta said recently.

The top court, on October 29, 2018, had dismissed the fresh plea of Nayyar on issues pertaining to the LGBTQ members saying that a five-judge constitution bench headed by the then Chief Justice Dipak Misra had already dealt with the batch of petitions on homosexuality.

"We are not inclined to entertain this petition after the decision of this Court in Navtej Singh Johar v Union of India decided on September 6, 2018," it had said.

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The constitution bench, on September 6, 2018, had unanimously held that consensual sex among adult homosexuals or heterosexuals in private space is not a crime.

It had also struck down part of a British-era law, section 377 of the IPC, that had criminalised the consensual unnatural sex on the grounds that it violated the constitutional right to equality and dignity.

Nayyar had filed the fresh plea saying that his petition was not limited to the issue of decriminalising the consensual gay sex only and had raised host of issues including the issue of "non-recognition of same-sex marriages" under the Special Marriages Act, 1954 and denial of adoption and surrogacy rights to the members of the LGBTQ community members.

However, the plea was dismissed on October 29, 2018 leading to filing of the review petition which has been dismissed. The review plea had sought civil rights of the LGBTQ community as part of the basic human rights and said that these rights were not addressed in the apex court's judgement on Section 377 of the IPC which had criminalised consensual gay sex.

It had sought recognition of their rights to same-sex marriages, adoption, surrogacy, IVF and directions so that the community can serve openly in the army, navy and air force.

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LGBTQ rights are not recognised as part of human rights. Non Recognition of same-sex marriages (Indian Special Marriages Act, 1954), availability of  adoption, surrogacy, IVF (for LGBTQ only) is violative of  Article 14, 15, 19, 21, 29. Discrimination solely on basis of sexual orientation violates Article 14, 15, 21 in relation to Army, Navy, Air force Act.

"Other instances of indirect discrimination are not addressed in the Navtej Singh Johar case. People in the military are not allowed to serve openly. Heterosexual people end up marrying LGBT people, end up consummating marriage with them, which harms heterosexual people most. Gay women have it worst," the plea said.

The definition of marriage for LGBTQ had not been addressed in the apex court's judgement of September 6, 2018, it said.

The plea said both heterosexuals in an opposite-sex relationship and homosexuals in a same-sex relationship are similarly circumstanced as the general nature of relationship is romantic and sexual one, either at the time of marriage as in a love marriage or is sought or hoped to be as in the case of arranged marriage.