The Supreme Court, on July 11, 2019, dismissed a plea filed by Tushar Nayyar seeking review of its 2018 order which had rejected a petition seeking various civil rights such as same-sex marriage, adoption, and surrogacy, IVF, for the LGBTQ community and directions to serve the country openly.
The three-judge bench, led by Justice N.V. Ramana, opined that the review petition, filed against the order dated October 29, 2018, was dismissed as no case for review of order was made out, noting that a five-judge constitution bench headed by the then Chief Justice Dipak Misra had already dealt with the batch of petitions on homosexuality holding that consensual sex among adult homosexuals or heterosexuals in private space is not a crime, striking down part of a British-era law, section 377 of the IPC, that had criminalised the consensual unnatural sex on the grounds that it violated the constitutional right to equality and dignity.
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What the Review Petition Said
The fresh plea, seeking the review of the 2018 order, was based on the following points.
(i) The petition was not only about the issue of decriminalising the consensual gay sex but about various other issues such as ‘non-recognition of same-sex marriages’, under the Special Marriages Act, 1954, and the denial of adoption and surrogacy rights to the members of the LGBTQ community members.
(ii) The plea sought civil rights of the LGBTQ community as part of the basic human rights, saying that those rights were not addressed in the apex court’s judgement on Section 377 of the IPC which had criminalised consensual gay sex.
(iii) Non-recognition of same-sex marriages (Indian Special Marriages Act, 1954), availability of adoption, surrogacy, IVF (for LGBTQ only) is violative of Articles 14, 15, 19, 21, and 29.
(iv) Discrimination solely on the basis of sexual orientation violates Article 14, 15, and 21 in relation to the Army, Navy, and Air Force Act. People in the military are not allowed to serve openly.
(v) Heterosexual people end up marrying LGBT people and consummating marriage with them, which harms heterosexual people the most. Gay women are affected the worst.
(vi) The definition of marriage for LGBTQ had not been addressed in the Supreme Court’s judgement of September 6, 2018, as per the plea.
(vii) Both heterosexuals in an opposite-sex relationship and homosexuals in a same-sex relationship are in similar circumstances as the general nature of the relationship is romantic and sexual one, either at the time of marriage as in a love marriage or is sought or hoped to be as in the case of an arranged marriage.
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