Same-sex marriage case Supreme Court hearing, hurdles
Pratik Permey says they felt discriminated against because of their queerness | Representational image

Same-sex marriage hearing | No absolute concept of man or woman: CJI

The Supreme Court on Tuesday (April 18) made it clear that it would not go into the personal laws governing marriages while deciding the pleas seeking legal validation for same-sex marriages and asked the lawyers to advance arguments on the Special Marriage Act.

A five-judge Constitution Bench comprising Chief Justice DY Chandrachud and Justices SK Kaul, SR Bhat, Hima Kohli, and PS Narasimha are hearing the case. Terming it a “very seminal issue”, the Supreme Court on March 13 referred the pleas to a five-judge Constitution Bench for adjudication. The issue has wide societal ramifications and also sharply divided opinion.

Towards the end of the day’s hearing, CJI Chandrachud significantly observed, “On the one hand, the LGBTQ community is entitled to say that they can make their own choices and live as they want, and then society cannot say that ‘you continue to live but we will not recognize you and deprive you of the benefit of conventional social institutions’. So, it is not proper to leave them alone to be recognized by social institutions.”

Special Marriage Act

Starting the arguments, Senior Advocate Mukul Rohatgi said the petitioners’ plea was that since criminality of same-sex relations are now gone, same-sex couples now enjoy equal rights as heterosexuals. Therefore, they want to enjoy the full extent of their rights, including marriage and family, “because marriage and family is respected in our society”.

Also read: Centre opposes same-sex marriage in SC, says it reflects urban elitist views

Taking the court through the history of same-sex marriages across the globe, Rohatgi said the petitioners want the provisions to read marriage as between spouses instead of man and woman. He sought the Special Marriage Act provisions to read marriage as between “spouses” instead of “man and woman”.

Appearing for the state, Solicitor General Tushar Mehta later argued that even in the Special Marriage Act, “the legislative intent throughout has been relationship between a biological male and a biological female.”

To that, CJI Chandrachud, said: “There is no absolute concept of a man or an absolute concept of a woman at all. It’s not the question of what your genitals are. It’s far more complex, that’s the point. So even when Special Marriage Act says man and woman, the very notion of a man and a woman is not an absolute based on genitals.”

“Right to dignity”

Rohatgi argued along those lines, “Both gender and biological attributes contribute distinct components of sex… The expression ‘sex’ is not limited to biological sex of male or female but intended to include people who consider themselves neither. Recognition of one’s gender identity lies at the heart of the fundamental right to dignity.”

Rohatgi placed his core argument on the stigma faced by the LGBTQIA++ individuals. “Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self worth of an individual,” he argued.

“My rights are equal to those of the others. They have a right to marriage, the right of respectability. A concomitant of rights flow from that respectability. The same should be granted to me,” he said on behalf of the petitioners.

Arguing against the contention that marriage is meant for procreation, Rohatgi pointed out that “Procreation, in today’s scenario, can also include adoption, IVF, surrogacy. It need not only be procreation in one form.” He went on to request “a constitutional declaration of marriage akin to heterogenous groups” for same-sex partners.

“Evolving acceptance”

On being pointed out the difficulties and ramifications for the Hindu Marriage Act and personal laws of various religious groups if the apex court were to hold same-sex marriages valid, the Bench said, “Then we can keep the personal laws out of the equation and all of you (lawyers) can address us on the Special Marriage Act (a religion neutral marriage law).

The Special Marriage Act, 1954, is a law that provides a legal framework for the marriage of people belonging to different religions or castes. It governs a civil marriage where the state sanctions the marriage rather than the religion.

CJI Chandrachud stated that between the time the Navtej Johar judgment was delivered in 2018 and now, society has found greater acceptance of same-sex relationships. “There is an acceptance which is evolving. We are very conscious of that,” he said.

Also read: Explained: Centre’s arguments in SC against same-sex marriages

Arguing for the petitioners, Senior Advocate Menaka Guruswamy then argued that in this evolving consensus, the court was also “playing a dialogical role to create that consensus and move towards an equal future.”

She further argued that marriage was not only a question of dignity but also a bouquet of rights that LGBTQ people are being denied. “Bank account, life insurance, medical insurance” — its about a lot of privileges. “When we look at law in India, most rights flow from this notion of blood relationships, i.e., either being born into a family or being married. That is the problem,” she argued.

Senior Advocate Abhishek Manu Singhvi, also arguing for the petitioners, said there could not be “a blank framework for the word ‘marriage’. Slow movements are crucial for social acceptance. The court cannot hold that same-sex marriage is valid, but keep it an empty shell.”

However, appearing for the Jamiat Ulema-e-Hind, lawyer Kapil Sibal significantly pointed out, “We believe in the autonomy of an individual… and we need to celebrate the union of two people… But now, if a marriage breaks, who will take care of the child?…Who will be the father? Who will be the mother?…. In international examples, they reform all other laws to accommodate it… I am all for same-sex marriage, but…if this is not done as a whole, then let it not be done at all.”

State’s argument

On Monday, the top court agreed to hear the Centre’s plea questioning the maintainability of the petitions seeking legal validation of same-sex marriage. A Bench headed by the CJI took note of the submissions of Solicitor General Tushar Mehta, who described the petitions seeking legal validation of same-sex marriage as one which reflect an “urban elitist” view for the purpose of social acceptance.

Also read: Explained: Why Centre is okay with gay rights but not same-sex marriages

The Centre told the apex court that recognition of marriage is essentially a legislative function, which the courts should refrain from deciding on. Questioning the maintainability of the petitions, the Centre has said legal validation for same-sex marriages will cause complete havoc with the delicate balance of personal laws and accepted societal values.

Continuing with that position on Tuesday, Solicitor General Mehta argued that Hindus, Muslims — everyone would be affected (by a change of law). “Therefore, the central government very respectfully prays that states will have to be heard,” he stated.

The Bench told the Solicitor General that the nature and tenability of the preliminary objection would depend on the canvas the petitioners open up and the court wants to have a view of their argument.

Sibal said Entry 5 of List III is the Concurrent List. “Would you be kind enough to hear the states as well,” he said, adding that notices have not been issued to the states.

Mehta said the subject with which the apex court is dealing is virtually the creation of a socio-legal relationship of marriage which would be the domain of the competent legislature.

“When the subject is in the Concurrent List, we cannot rule out the possibility of one state agreeing to it, another state legislating in favour of it, another state legislating against it. Therefore, in absence of the states being not joined, the petitions would not be maintainable, that is one of my preliminary objections,” he said.

In the Special Marriage Act as well as in the Hindu Marriage Act, every state has separate rules. That makes more case for calling all the states and hearing them, Mehta said.

The apex court on November 25 last year had sought the Centre’s response to separate pleas moved by two gay couples seeking enforcement of their right to marry and a direction to the authorities concerned to register their marriages under the Special Marriage Act.

(With agency inputs)

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