constitutional values and that such courts do not need to wait for the legislature to enact or amend laws to recognise same-sex marriage.
Almost a week later, Supriya Chakravarty and Abhay Dang also moved the top court seeking a review of the October 17 judgment. They argued that constitutional courts are empowered to review statutory law to ensure its conformity with constitutional values and that such courts do not need to wait for the legislature to enact or amend laws to recognise same-sex marriage.
There is a right to a relationship, a right to union, and a right to civil union under the Constitution, yet the majority decision fails to secure any legal status for such rights..The bench unanimously finds that the exclusion of queer couples from the existing statutory regime is discriminatory, yet the majority decision grants no relief,” complained the petition.
The top court’s ruling on October 17 unanimously held that the right to marry was not a fundamental right, and that it was beyond the remit of courts to issue a positive direction to the legislature to characterise same-sex marriages and queer relationships through a new instrument of law.
The judgments — separately authored by the CJI, and justices Kaul, Bhat and Narasimha — also refused to annul or read down the provisions of the Special Marriage Act (SMA) to include non-heterosexual couples within its fold.
The judges, however, were divided in deciding how far a court can go despite acknowledging that queerness is not an “urban, elitist concept” and required the State to ascertain protection to such couples.
While the CJI and justice Kaul maintained that the right to enter into a union by queer couples is a constitutionally protected right and that the State has an obligation to recognise such civil unions and grant them benefit under law, including adoption rights, the other three judges overruled this view.