'Self-contradictory and manifestly unjust,' Plea filed in SC for review of same-sex marriage judgment

New Delhi: A plea has been filed in the Supreme Court for review of its October 17 decision by a five-judge Constitution bench declining to grant legal recognition to the marriage of same-sex couples, contending the judgment suffered from errors apparent on the face of the record and was self-contradictory and manifestly unjust.

One of the petitioners Udit Sood, claimed the majority judgment is self-contradictory in its understanding of "marriage".

"The majority judgment effectively compels young queer Indians to remain in the closet and lead dishonest lives if they wish the joys of a real family. It is fallacious that, under these facts, and in the absence of a fundamental right to marry or form a union, the rights to equal protection, dignity and fraternity are insufficient to justify judicial intervention," the plea said.

The plea said the judgement acknowledges that the Special Marriage Act, 1954 confers the "status" of marriage, observing that the Act "in fact created social status or facilitated the status of individuals in private fields" and that the Parliament "has intervened and facilitated creation of social status (marriage) through SMA."

However, the ruling then rests on the opposite premise-namely, that the terms of marriage are largely set independently of the state and that the status of marriage "is still not one that is conferred by the state", the plea said.

"The majority judgment overlooks that marriage, at its core, is an enforceable social contract. The right to so contract is available to anyone capable of consenting. Adults of any faith-or no faith-may engage in it. No one group of people may define for another what "marriage" means. No contract, nor forceful State action like imprisonment, may curtail an adult's fundamental right to marry," it said.

The petitioner further said the majority judgment warranted review because it summarily disregards the foregoing authority to make the chilling declaration that the Constitution guarantees no fundamental right to marry, found a family, or form a civil union.

"The majority judgment is manifestly unjust because it countenances animus-motivated depravation of the petitioners' fundamental rights. And yet, it overlooks that the legislative choice herein treats homosexuals as sub-par humans" it said.

In its decision, the top court had declined to grant legal recognition to the marriage of same-sex couples. However, it did uphold their right to cohabitation without any threat to violence and interference and also sought to debunk the notion that homosexuality was an urban, elite concept.

The judges were split on the issue of civil unions (akin to marriage) and adoption by same-sex couples, and in a 3:2 judgement ruled against both, while noting that marriage laws can't be seen in isolation.