A second review petition has been filed in the apex court against the Supreme Court's refusal to give legal recognition to gay marriage.

After a plea was filed by one of the petitioners in the gay marriage case, lead petitioners in the case Supriya Chakraborty and Abhay Dang have moved the apex court seeking review 

On October 17, a five-judge Constitution bench of the Supreme Court had refused to give legal recognition to gay marriage. 

The court had also said that it is the job of the Parliament to make a law in this regard. The petitioners have said that they are unhappy as they have not received any relief from the Supreme Court.

According to the petitioners, constitutional courts have the power to review statutory legislation to ensure its conformity with constitutional values. 

Such courts do not need to wait for the Legislature to enact/amend a law to recognize same-sex marriage. 

4 judges gave judgment in the Same Sex Marriage, out of the Constitution bench headed by Chief Justice of India. Judges were unanimous on some issues whereas the judgment was divided on certain issues. From a marathon the pronouncement stretching to about 2 hours, the TLA has find out the major takes of the judgment as pronounced:-

1. Whether a change in the regime of the Special Marriage Act is for the Parliament to decide. This court must be careful to not enter into legislative domain.
2. Incorrect to state that marriage is a static and unchanging institution.
3. Queer is a natural phenomenon known for ages. Homosexuality or queerness is not an urban concept or restricted to the upper classes of the society.
4. Our ability to feel love and connection with one another makes us feel human. We have an innate need to be seen and see. The need to share our emotions make us who we are. These relationships may take many forms, natal families, romantic relationships etc.
5. The need to form part of family is a core part of the human trait and is important for self development
6. Choosing a life partner is an integral part of choosing one's course of life. Some may regard this as the most important decision of their life. This right goes to the root of the right to life and liberty under Article 21.  
7. The right to enter into union includes the right to choose one's partner and the right to recognition of that union. A failure to recognise such associations will result in discrimination against queer couples.
8. All persons, including queer persons, have the right to judge the moral quality of their lives. The meaning of liberty is the ability to be who one wishes to be.
9. This court has recognized that queer persons cannot be discriminated upon. Material benefits and services flowing to heterosexual couples and denied to queer couples will be a violation of their fundamental right.
10. It cannot be assumed that unmarried couples are not serious about their relationship.
11. Right to enter into union cannot be restricted on the basis of sexual orientation.
12. Withdrawal of the State from the domestic space leaves the vulnerable party unprotected. Thus, all intimate activities within private space cannot be said to be beyond State's scrutiny.
13. Whether a change in the regime of the Special Marriage Act is for the Parliament to decide. This Court must be careful to not enter into legislative domain.
14. Centre should proceed with its committee, headed by the Cabinet Secretary, to address the raft of concerns of same-sex couples, including ration cards, pension, gratuity and succession.
15. Same-sex relationships have been recognized from antiquity, not just for sexual activities but as relationships for emotional fulfilment. I have referred to certain Sufi traditions.
16. This moment is an opportunity to remedy the historical injustice and discrimination and thus governance needed to grant rights to such unions or marriages.
17. I wholeheartedly agree with the Chief Justice of India that there is a need for an anti-discrimination law.
18. Legal recognition of non-heterosexual unions is step towards marriage equality.
19. This Court has recognized that marriage is a social institution. Marriage as an institution precedes State. This implies that marriage structure exists regardless of the State. Terms of marriage are independent of the State, and its sources are external.
20. This is not a case where the Court can require the State to create a legal status. Recognition for Civil union cannot exist in the absence of a legislation. Creation of an institution depends on State action which is sought to be compelled through the agency of the Court.
21. All queer persons have the right to choose their partners. But State cannot be obligated to recognize the bouquet of rights flowing from such a Union. We disagree with the CJI on this aspect.
22. To create an overarching obligation upon the State is not rooted in any past decision or jurisprudence but queer people have the right to cohabit without disturbance and thus to live without threat flows from that.
23. Denial of benefits such as a PF, ESI, pension etc to queer partners may have an adverse discriminatory effect.
24. A national helpline is required to be set up.
25. People are required to be educated for the rights of these persons.
26. Security to be provided to the queer.

Click here to download/view the judgment