‘No Error In Judgment’: Supreme Court Dismisses Same-Sex Marriage Review Petition

New Delhi: The Supreme Court of India has dismissed the review petition seeking the legalisation of same-sex marriage. This decision comes after a five-judge Constitution Bench ruled in October 2023 that same-sex couples do not have a fundamental right to marry. A bench headed by Justice BR Gavai stated that there was no error in the judgment.

The review petition was considered by a bench comprising Justices BR Gavai, Suryakant, BV Nagarathna, PS Narasimha, and Dipankar Datta. After examining the judgments, the bench found no error apparent on the record and concluded that the views expressed were in accordance with the law. The new bench was constituted after Justice Sanjiv Khanna, the present CJI, recused from hearing the review petitions on July 10, 2024.

"We do not find any error apparent on the face of the record. We further find that the view expressed in both judgements is in accordance with the law and as such, no interference is warranted. Accordingly, the review petitions are dismissed," the bench said.

The Supreme Court, in its original verdict, unanimously held that there is no unqualified right to marriage, and it is up to Parliament to decide on legalising same-sex marriage. The court also emphasised the need to protect the rights of LGBTQIA+ individuals and ensure they do not face discrimination. Notably, Justice PS Narasimha is the only member of the original Constitution bench comprising five judges who delivered the verdict, as former CJI DY Chandrachud and Justices SK Kaul, Ravindra Bhat and Hima Kohli have retired.

During the verdict in October 2023, the Supreme Court of India stated that it could not legalise same-sex marriages, with then CJI Chandrachud asserting that enacting such a law falls within the domain of Parliament.

The Constitution bench, led by then CJI Chandrachud and comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, delivered a split verdict of 3-2, refusing to legalise same-sex marriage in four separate judgments.

The judges were unanimous in holding that queerness was a natural phenomenon and not an "urban or elite" notion.

In his judgement, the former CJI recorded Solicitor General Tushar Mehta's assurance of forming a committee chaired by the cabinet secretary to define and elucidate the scope of entitlements of such couples in a union.

The LGBTQIA++ rights activists, who won a major legal battle in 2018 in the Supreme Court, which decriminalised consensual gay sex, moved the apex court seeking validation of same-sex marriages and consequential reliefs such as rights to adoption, enrolment as parents in schools, opening of bank accounts and availing succession and insurance benefits.

Some of the petitioners sought the apex court to use its plenary power besides the "prestige and moral authority" to push society to acknowledge such a union and ensure LGBTQIA++ persons led a "dignified" life as heterosexuals.