India

NEW DELHI: LGBTQIA+ community members on Thursday requested an open court hearing on their petitions seeking review of the Supreme Court’s October 17 judgment rejecting marriage rights for same-sex couples, and tactically based their demand on CJI D Y Chandrachud’s minority opinion – “when there is discrimination, it must be remedied by the courts”.Senior advocate Mukul Rohatgi told a bench led by the CJI that the review petitions, listed for consideration in chambers before a five-judge bench on November 28, must be heard in the open court.Review petitions are normally taken up in chambers by the judges who have delivered the earlier judgment and without the assistance of lawyers from both sides.

If the bench agrees to entertain the petition and considers it necessary to hear arguments on issues which were either not touched upon or erroneously adjudicated in the judgment, it holds the hearing in open court.Can’t stop people from becoming judges over remarks made as lawyers, past political roles: CJI Chandrachud on Justice Victoria GowriThough the five-judge bench had unanimously rejected the plea that the court direct the government to grant marriage rights to gay couples, the CJI and Justice S K Kaul had in their minority opinion held that the right to civil union, adoption, and those ancillary to it must be conferred on queer couples.The majority opinion, authored by Justice S R Bhat and agreed to by Justices Hima Kohli and P S Narasimha, had rejected even civil union rights for the LGBTQIA+ community.Rohatgi said all five judges agreed that the LGBTQIA+ community faced discrimination in society.

“If there is discrimination, it must be remedied by the court.

We sincerely request the CJI to put it up for an open court hearing,” he said.The CJI in his opinion had said, “The realisation of a right is effectuated when there is a remedy available to enforce it.

The principle of ubi jus ibi remedium (that is, an infringement of a right has a remedy) which has been applied in the context of civil law for centuries cannot be ignored in the constitutional context.”Interestingly, Justice Bhat retired three days after the pronouncement of the judgment, which came as a heartbreak to the LGBTQIA+ community.

This means the bench which would deal with the review petitions on November 28 would have a new judge to chosen by the CJI to fill the vacancy caused by Justice Bhat’s retirement.The review petitioners — Udit Sood, Saattvic, Lakshmi Manoharan and Gagandeep Paul — raised the same grounds on which the original writ petitions were filed seeking legal recognition to same-sex marriage.They said the judgment denies the queer community members “right to marry, to choose a partner of one’s own choice and to form a family — all privileges which are conferred upon heterosexual couples”.

They said though the court recognised the discrimination faced by members of LGBTQIA+ community members in the society, it failed to remedy or mitigate them.“For a constitutional court to specifically find discrimination against a marginalised community, but refusal to grant appropriate relief on the ground that it is for the state to take measures, is an abdication of its duties under the Constitution.

Such contradictions must be remedied by the SC in its review jurisdiction,” they said, relying on the core of the CJI’s opinion.





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