"There is no absolute concept of a man or an absolute concept of a woman at all," Chief Justice of India (CJI) DY Chandrachud said on Tuesday, April 18, as a five-judge Constitution Bench of the Supreme Court headed by the CJI heard a batch of petitions seeking marriage equality. The CJI made this observation after Solicitor General (SG) Tushar Mehta opposed the petitions on behalf of the Union government, stating that marriage has always been between a “biological man and a biological woman”, even under the Special Marriage Act (SMA).
While primarily demanding marriage equality for LGBTQIA+ persons, the petitions raise larger questions about the institution of marriage itself and how Indian laws pertaining to marriage interfere with the fundamental rights and personal liberties of individuals as guaranteed by the Constitution. Here is what happened in the court on the first day of the hearing.
Solicitor General Tushar Mehta, appearing for the Union government, opposed the petitions citing that the legislators intended marriage to only happen between a “biological man and a biological woman,” which is why even the SMA is worded to reflect that. He further argued that “a biological man is a biological man and it is not a notion.”
The CJI however observed that such definitions based on a person’s genitals are not tenable and that gender identity is far more complex. “Even when the Special Marriage Act says man and woman, the very notion of a man and notion of a woman is not an absolute, based on what genitals you have," he said.
Senior Advocate Rakesh Dwivedi, appearing for one of the parties opposing the petitions, cited the Rig Veda and Manusmriti and argued that the core purpose of a heterosexual union is to perpetuate the human race. “Same-sex unions have always existed, but they were not given equality at par with heterosexual couples. They were never treated equally,” he said.
During the hearing, Tushar Mehta also stressed that the maintainability of the petitions should be decided on first, adding that since marriage is a matter in the Concurrent list, all states must also be made party to the petition. To this, the bench replied that it will not get into personal laws for the time being and will only stick to the provisions of the SMA.
Arguing for the petitioners, advocate Menaka Guruswamy said that marriage is a “bouquet of rights” for LGBTQIA+ persons. “One facet of that right is the constitutional value of dignity, equality, and fraternity. The other facet is the day-to-day business of life,” she argued, citing that the denial of marriage rights to LGBTQIA+ individuals also denies them access to joint banking, insurance, and the like.
Senior Advocate AM Singhvi, also arguing for the petitioners, said that the issue of gender and the spectrum of sex can be dealt with by reading the SMA in a broader sense “to be between two consenting adults along the spectrum and not same-sex”. “There is LGBTQIA+, which has a whole spectrum of hues and colours. So, the correct formulation should be two consenting adults along the bodily gender and sex spectrum,” he argued, emphasising that this petition is about inclusivity in marriage laws and not just same-sex marriages.
Senior advocate Kapil Sibal, who appeared for one of the defendants, opposed the arguments by the petitioners and submitted that while he is in support of such relationships, he is concerned about the societal consequences which may follow if marriage equality is allowed. He also questioned what happens if the couple adopts a child and later wants to separate, asking who will receive the maintenance. Sibal stressed that in other countries where same-sex marriages are recognised, they did so by overhauling the entire legal framework.
Senior counsel Mukul Rohatgi, one of the lawyers for the petitioners, contended that the “unnatural part” of same-sex relationships is effaced from the statute book and that the rights of the LGBTQIA+ community are equal to that of any citizen, which reflects in multiple judgements, including that of Puttaswamy and Navtej Johar.
Referring to the decriminalisation of Section 377 (unnatural offences) of the Indian Penal Code (IPC), he said that while same-sex couples are granted the right to live a dignified life, the next step is the recognition of their right to marriage. “Once the recognition by the state is done, the society follows the state. Society and humans are resistant to change. So society follows what the law is and what the law is, is what is said in the Parliament or this court,” he argued.
Referring to the defence’s statements, Rohatgi said the argument by the Union government about heterosexuality being the norm is astounding. “The Constitution did not make two classes of citizens,” he said, arguing that the stumbling block for non-heterosexual couples was Section 377, which is now decriminalised. “Now, all that is being argued here is the mindset. That is why the other side has called this an urban elitist concept. How can you say this is an elitist concept when we are born with it?” he asked.
“I am not perceived as a criminal, but I am still perceived as a person who is not as good, who is unworthy of standing shoulder to shoulder in a public arena,” he argued, citing that the core of the marriage equality petitions is that the rights of all citizens must be equal.
He further contended that members of the LGBTQIA+ community have the right to marriage and the right to respectability. “A concomitant of rights flow from that respectability. The same should be granted to me. I have a right to come to this court under Article 32 [Remedies for enforcement of rights]. I should not be told to wait for the Parliament,” he argued, adding that the argument of leaving it to the Parliament should not be raised as the court is the “protector of fundamental rights.”
He also argued that nothing has to be struck down in the laws, but only the words “husband” and “wife” in the SMA have to be read as “spouse”. He added that the court need not wait for the Parliament to interpret the law in a broader sense, especially when the fundamental rights of citizens are affected.
CJI Chandrachud took note of the argument that the LGBTQIA+ community, on one hand, is entitled to make their own choices and live as they want, but on the other hand, our society says that they will not be recognised on par with heterosexuals, depriving same-sex couples of the benefit of social institutions.
Citing the Vishaka case where the court laid down guidelines for dealing with workplace sexual harassment, advocate Rohatgi contended that the court’s guidelines were then made into a law. Rohatgi sought similar interim guidelines from the Supreme Court in the case of marriage equality.
After taking the court through multiple judgements that speak about the rights of LGBTQIA+ individuals, Rohatgi asserted that the recognition of one's gender identity lies at the heart of the fundamental right to dignity. “If you do not have full enjoyment of life, you will not have dignity. We are facing the disdain of the majority. While Section 377 is gone, we are asked to remain in our closet. Privacy and dignity go hand in hand, and dignity is a life lived to its fullest,” he argued.
He also said that when the right of marriage is denied, it means that citizenship is denied. “If you deny me citizenship, you are saying that I am no good and that I am not equal to a citizen under the Preamble,” he contended.
On January 5 this year, the Supreme Court had clubbed and transferred to itself all petitions pending before different High Courts across the country on the issue of the grant of marriage equality to individuals of the LGBTQIA+ community. The batch comprises about 15 petitions challenging certain sections of the Hindu Marriage Act (HMA), the Special Marriage Act (SMA), the Foreign Marriage Act (FMA), and other marriage laws, citing them as unconstitutional on the ground that they deny LGBTQIA+ persons the right to marry the person of their choice.
The petitions ask for the said sections to be read broadly so as to grant persons of all genders and sexual orientations the right to marry. The court has agreed to circumvent the hearing to SMA, and the hearing has been posted to Wednesday, April 19.
(With IANS inputs)