The Supreme Court to accept the review petition on its judgement shows the hope that the court is taking a progressive stance on the liberty of the LGBTQ community. There has been a long history of fighting for the rights of LGBTQ but the fight still goes but only hope for the best.
Author: Md Sami Rahman, Integrated Law Course, Delhi University
Introduction
On 10th July 2024, the Supreme Court agreed to hear the review petition filed in the case of Supriya Vs UOI on its judgement which was delivered by the Supreme Court on 17th October 2023 in which the court held by the 3:2 majority held that the Supreme court cannot strike down the special marriage act of 1954 only on the account that it has some limitations it is the domain of the legislature to made the law or added something and court cannot struck down. All the judges agree that the government will make a high-power committee to examine the rights of queer and see their grievances and try to solve them as soon as possible. All the judges have agreed on one issue that the queer couple have the right to cohabit under their own choice but the court cannot grant them to right to the marriage under Special Marriage Act 1954 the reasoning given that there is a separation of power which is the basic structure of the doctrine and court held that there are not any rights which does not have any reasonable restrictions and we know that there is ongoing consultant with the people to implement the Uniform Civil Code in short (UCC) then it will act as hinder because there is no draft present so why court cannot give the marriage recognition to the same sex couple under special marriage act of 1954. After this judgement was reviewed a petition was filed in the Supreme Court to examine this Review petition is the power of the Supreme Court given under Article 137 in which any judgement made by the Supreme Court can be reviewed by itself it is not the appeal it is given only to see whether there was an error in the previous judgement made it is not the right of the petitioner to get accepted in the court it is the discretion of the supreme court to accept the review petition or rejected the review petition. In this case, the Supreme Court accepted the review petition on 10th July 2024 and let’s see what will be going on in the hearing of the case.
Evolution of Same-sex marriage in India in Indian courts
The struggle for the LGBTQ community started in 2001 when the NAZ Foundation (an NGO working for the right of queer people) filed a case in the Delhi High Court to challenge the constitutionality validity of section 377 of The Indian penal code (IPC) which criminalised “carnal intercourse against the order of nature.”After 8 years of long hearings, the Delhi High Court struck down the provision of section 377 on the reasoning that it was against articles 14 and 15. Against this decision there was an appeal filed in the Supreme Court of India named Suresh Kaushal vs NAZ Foundation Supreme Court struck down the judgement of the Delhi high court and criminalised section 377 of IPC holding that court cannot amend or repeal the law because it is against the spirit of separation of power this was a setback to the queer activists and people who wanted equality in the marriage. In 2014 Supreme Court took a progression stance on the rights of the LGBTQ community in the judgement of National Legal Service Authority(NALSA) Vs UOI the supreme court recognised transgender under the category of third generation and affirmed their fundamental rights, laying the groundwork for a broader interpretation of gender and sexuality rights. This judgement gives hope to transgender people that now the Supreme Court taking the progression right regarding the LGBTQ community. In 2018 in the landmark judgement of Navtej Singh Johar vs UOI the Supreme Court held that the Supreme Court decriminalized consensual homosexual acts, overruling its 2013 decision. The court held that Section 377 was unconstitutional to the extent it criminalized consensual sexual conduct between adults of the same sex, thus affirming the rights of LGBTQ+ individuals. After this judgement, many queer couples wanted to register their marriage in India. There are various petitions filed in different high courts so finally in November 2022 Supreme Court club all the petitions in the Supreme Court and gave the name Supriyo Vs UOI the main contention in this petition was a challenge to the Special Marriage Act on the ground that it has limitations regarding marriage so by the decision court held that it cannot repeal or amend the law only on the ground that it has limitations. Because the separation of power is part of the constitution.
Way ahead
There has been speculation that in the review petition accepted by the Supreme Court, I can say the court took the progressive approach as described in the earlier judgement. I hope that the review petition filed in the court can be accepted and we can see that there will be legal recognition of the marriage in India. This is a very progressive step if it happens it will be very helpful for the rights and liberty of the LGBTQ community.
Conclusion
The Supreme Court’s decision to hear the review petition in this judgement in Supriya Vs UOI has shown the changing perspective of the court’s ideas related to the rights and liberty of the LGBTQ community. The court upheld the principle of separation of power by not adding or repealing the provision of the Special Marriage Act 1954 only on the grounds of limitations. There is a long history of rights and Liberty for the LGBTQ community since the NAZ foundation there has been a change in the perspective of people regarding LGBTQ rights but the fight is not over. If successful, it could significantly enhance the rights and liberties of the LGBTQ+ community in India, representing a crucial step towards equality and justice.
FAQ
1 What is the implementation of this judgement
Answer- The implications of this judgement have many setbacks for the liberty of the LGBTQ who are fighting for liberty but we can hope that the review petition will help to get hope back.
