Same-sex marriage: Call to hear review plea in open court

NEW DELHI: Reputed senior advocates well-versed with rules regulating adjudication of review petitions took CJI D Y Chandrachud by surprise on Tuesday with their 'cart-before-the horse' requests for open court hearing of petitions seeking reconsideration of the Supreme Court's Oct 17, 2023, judgment unanimously denying legalisation of same-sex marriages .
Review petitions are decided in chamber by judges without the presence of counsel for parties. The bench that had delivered the judgment on being satisfied that the petitioners have pointed out "errors apparent on the face of the judgement" may allow open court hearing for reconsideration of the verdict.
A number of senior advocates - A M Singhvi, N K Kaul, Mukul Rohatgi and Menaka Guruswamy - requested the CJI to place the review pleas for hearing in open court. However, solicitor general Tushar Mehta said since a five-judge bench had unanimously rejected legalising same-sex marriages, it was the prerogative of the reconstituted five-judge bench to decide the merit of these review petitions in chamber.
The CJI said, "The Constitution bench is seized of the review petitions, which will be heard in chamber on Wednesday. Everyone is aware of the rules governing chamber hearing of review petitions. I hope you all are not arguing the review petitions in open court even before the bench takes up the matter in chamber tomorrow (Wednesday)."
A bench of CJI Chandrachud and Justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha had on Oct 17, 2023, unanimously declined pleas by members of the LGBTQ community to legalise same-sex marriages. However, the CJI and Justice Kaul, in their minority view, had said queer couples should enjoy certain social rights, including the right to form unions and adoption. Justices Kaul and Bhat have since retired and the CJI has replaced them with Justices Sanjiv Khanna and B V Nagarathna on the five-judge bench, which will consider the petitions seeking review of the Oct 17, 2023, decision in chamber on Wednesday. In a unanimous ruling that right to marry was not a fundamental right, SC had unequivocally stated that the legislature alone could effect changes in marriage laws and other consequential legislations to allow same-sex couples the right to legally tie the knot.