SC verdict | The arguments made for and against same-sex marriages

Same-sex marriages are legal in about 30 nations, including Australia, Canada, France, and the US. There are only two other countries in Asia that currently allow same-sex unions.

The Constitution bench in the Supreme Court is headed by Chief Justice of India DY Chandrachud and includes Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha.

The court rejected the union government’s arguments against judicial determination of the issue and began hearings on April 18, 2023. The government’s view was that it was the legislature’s right to grant legal recognition of a social institution like marriage, and that the court should first ascertain the views of all the states.

However, the SC bench took up the case, saying it would adjudicate the issue of granting validation to same-sex marriage within the relevant provisions of the Special Marriage Act (SMA).

The petitioners’ arguments

The petitioners in the case included same-sex couples, gay rights activists, and social workers.

The petitions argued that marriage brings with it several rights, privileges, and obligations “bestowed and protected by the law”.

They said that the right to marry for non-heterosexual couples is implicit in Article 14 (Equality), Article 15 (Non-Discrimination), Article 16 (Equality of Opportunity in Public Employment), Article 19 (Freedom of Speech), and Article 21 (Right to Life).

They challenged the constitutionality of several provisions of the Hindu Marriage Act, Special Marriage Act, Foreign Marriage Act and other marriage-related laws on the ground that they deny same- sex couples the right to marry under the existing legal framework.

The petitions have requested the apex court to include same-sex marriage within these provisions, if possible.

They said the court would have to recognise marriage as a union of two individuals independent of gender and sexual orientation or replace provisions that mention “man”, “woman”, “husband”, and “wife”, with terms like “person” and “spouse” that are gender neutral.

The petitions referred to the 2017 judgement by a nine-judge bench in the right to privacy case which included sexual orientation as a part of privacy. They also brought the court’s notice to the 2018 Navtej Johar judgement that decriminalised homosexuality.

They said that same-sex marriages could be accorded legal recognition under the Special Marriage Act, which would ensure that they have access to social security and other welfare benefits.

Some of the petitions challenged the validity of Sections 5 – 8 of the SMA that made it a legal requirement for couples to issue a 30-day public notice inviting objections to an intended marriage. They said it was patriarchal in nature, and invaded one’s privacy and the right to marry a person of one’s choice.

The petitioners contended that the Supreme Court’s recognition of same-sex marriage would eventually lead to a situation where society accepts it. Senior advocate Mukul Rohatgi said, “This court needs to push society to acknowledge same-sex marriage”.

The petitioners were represented by senior advocates Mukul Rohatgi, Abhishek Manu Singhvi, Raju Ramachandran, Anand Grover, KV Viswanathan, Geeta Luthra, Saurabh Kirpal and Menaka Guruswamy, among others.

The union government’s arguments

The Centre has consistently maintained before the court that existing legislative policy and the interests of the state recognise only marriages between a biological man and a biological woman, and rejected the petitioners’ stand as one promoting an “urban elitist concept”.

It was the government’s view that legality of same-sex marriages would lead to “complete havoc”, and would shatter the delicate balance of personal laws and accepted societal values in the country.

It said the law passed by Parliament recognised only the union between a man and a woman.

“This definition is socially, culturally and legally ingrained into the very idea and concept of marriage and ought not to be disturbed or diluted by judicial interpretation...Any other interpretation will make all statutory provisions unworkable apart from being completely contrary to the consistent legislative policy which is based upon the considered opinions of law makers, based on cultural ethos and societal values in each country,” it said.

It said marriages could not be deemed to be in the private domain since they have several consequences on the partners and their children, and would affect issues like divorce, maintenance, adoption, succession, and inheritance.

The government contended that only Parliament could give legal recognition to same-sex marriages, and that there are no restrictions on having homosexual relations or living together as couples.

The Centre agreed to set up a ministerial committee to explore the steps it could take to ensure certain benefits for same-sex couples even in the absence of marriage.

It urged the court to refrain from passing any judgement in favour of same-sex marriage, and said the court could not foresee or control the consequences of such a declaration.

The Centre’s advocates, led by the solicitor general Tushar Mehta, said any change to words in the SMA would have an unforeseen fallout on several provisions in other laws, and would also impact personal laws.

The government also informed the bench that in response to its letter to the states in April 2023, three states – Assam, Andhra Pradesh, and Rajasthan – have opposed legalizing same-sex marriages saying it was the legislative’s right to pass laws across religious faiths, while four states – Manipur, Maharashtra, Sikkim, and Uttar Pradesh – wanted more time to respond.