The fourth day of the Supreme Court hearing of marriage equality petitions was conducted in hybrid mode on Tuesday, April 25, as two justices of the five-judge Constitution bench are unwell. The bench, headed by Chief Justice of India (CJI) DY Chandrachud, comprises Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha. While Justice Kaul is recovering from COVID-19, Justice Bhat tested positive on Friday.
The batch of petitions, while primarily dealing with marriage equality for LGBTQIA+ persons, have raised larger questions about the institution of marriage. The petitions question how Indian laws pertaining to marriage interfere with the fundamental rights and personal liberties of individuals as guaranteed by the Constitution. While the petitions were against multiple legislations including the Special Marriage Act (SMA), Hindu Marriage Act (HMA), and others, the apex court has decided to restrict the hearing only to the SMA. Here is what happened on Day 4.
Senior advocate Geetha Luthra argued for petitioners who are legally married in the United States of America (USA), one of them an Indian. The couple was denied a visa when they applied to travel to India, despite the country’s provision to grant visas to partners of Indian citizens during the COVID-19 pandemic. When they sought to register their marriage under the Foreign Marriage Act (FMA), that too was rejected.
“It is grossly unjust that they're free and equal in other countries, but in the country of birth of the first petitioner, they're invisible and their rights are not recognised. During COVID-19, visas were granted to spouses of Indian citizens. But as their marriage was not recognised, the second petitioner did not get a visa. So while they are a married couple in the US, they could not come to India,” she said, arguing that the FMA was an extension of the SMA and should therefore be considered for amendment by the court.
However, referring to the conditions relating to solemnisation of the marriage put forth in section 4 of the FMA, Justice Bhat pointed out that the section makes a mention of personal law. Section 4 of the FMA states that an Indian citizen’s marriage with a foreign citizen can be solemnised if neither party has a living spouse, neither is “an idiot or a lunatic”, the groom “has completed the age of 21 years and the bride the age of 18 years at the time of the marriage, and the parties are not within the degrees of prohibited relationship.” The section further stresses that such marriage may also be solemnised even if they are “within the degrees of prohibited relationship,” provided that a “personal law or a custom governing at least one of the parties” permits a marriage between them.
On the first day of the hearing, Justice Kaul had stated that the bench will not step into personal law issues in this hearing, as it was better to proceed “incrementally" than to deal with all the laws together.
Advocate Geetha further contended that marriage is not a static concept but “an expansive evolutionary inclusive concept,” pointing out that there was a time when interracial marriages were not recognised in the US and intercaste marriages in India. “The moment we recognised that those of the LGBTQIA+ community have rights, they may be a minority, but the majority cannot decide the rights of a minority,” she said.
She also argued that there should be a “constitutional comity” and India cannot be lagging behind. Cornell Law School defines comity as the practice of “courts of one state or jurisdiction respecting the laws and judicial decisions of other jurisdictions — whether state, federal or international — not as a matter of obligation but out of deference and mutual respect.”
She said that 12 G20 countries, including the European Union, have permitted same sex marriages. “About 34 countries of the world have done that. Virtually every democratic, progressive country of the world has recognised same sex marriages. We cannot be behind,” she contended, and added that the right to marriage encompasses other rights such as rights of visas, passports, right to live in India, rights of inheritance. “Every right flows out of this old institution which has been recognised and revered in our country,” she argued.
Senior advocate Anand Grover appeared for two petitioners — one Hindu couple of Indian origin who got married in the USA and tried to register their marriage under the FMA; and an interfaith couple who wanted to register their marriage under the SMA. He made submissions regarding the aspect of “intimate association” from the US jurisprudence — the right to maintain private associations without interference. Intimate association is considered a fundamental right in the US, along with privacy and the right to express freely. It includes the right to personal relationships, right to marriage, and right to cohabitation among others.
“The idea is that you can form associations — cooperative societies to trade unions, which are larger groups, and intimate unions of a romantic or marital nature,” the advocate said, contending that this is already “encapsulated under Article 19(1)(c)” [freedom to form associations or unions] under the Indian Constitution. He argued that this right can be read into Article 21 of the Indian Constitution, which deals with “protection of life and personal liberty.”
Advocate Anand also distributed a gender glossary to the court, considering the confusion on the terms related to gender. Referring to the Union government’s affidavit filed during the 2014 NALSA case where the government argued that there were no non-heterosexual relationships in India up to the advent of the British, he contended that it was “completely incorrect.” “There is tons of literature that shows that these relationships prevailed. Not only did they prevail but scriptures recorded it,” he said, making references to Hinduism, Buddhism, and Ramayana.
On the argument of the Union government that the matter should be left to Parliament to bring out legislation, Anand referred to the research by Pink List India — an archive of politicians supporting LGBTQIA+ rights — that found that there has been no positive response in the past five years. In a tweet later, Pink List India said, “Since 2008, despite questions in Parliament, objections in debates, and private member bills, we have seen no progress on marriage equality.”
“We cannot wait for Parliament,” argued Anand Grover, with the brilliant @BhattRohin, and submitted @PinkListIndia’s research to the Supreme Court during the #MarriageEquality hearings today.
— Pink List India (@PinkListIndia) April 25, 2023
We are grateful to everyone who tirelessly tracks what Indian MPs say on LGBTQ+ issues! pic.twitter.com/auNjYAOyuK
Senior counsel Jayna Kothari, appearing for trans rights activist Akkai Padmashali and others, opened her arguments by saying that their demand was marriage equality for all, and not just for same sex couples. “We are for equality of marriage for all persons irrespective of gender or sexual orientation,” she said.
Defining transgender persons as “persons whose gender does not align with the sex given at birth,” she contended that the NALSA judgement protected the right to self-determine a person’s gender identity. “This court held that it is not only two genders — not only male or female — but male, female, or transgender [persons] who could identify as any gender even without medical reassignment. The purpose of granting this right to self-determine one's gender identity is to get legal recognition of a whole bunch of other rights, including the right to marry. The right of transgender persons to marry was also specifically recognised in NALSA. In practice, despite the recognition of one's gender identity, transgender persons are unable to exercise their full legal rights for many reasons,” she contended, adding that despite NALSA, they still have to get “medical reassignment” to get documents changed. She pointed out that there is the matter of intersex persons to consider as well.
Advocate Jayna’s second argument was that the right to family has to be recognised under Article 21. Recalling that Akkai was subjected to violence at her natal home and had to resort to begging for livelihood, she said that the right to marry gives a person the right to have a family of their own. “The right to marry has been upheld in a whole variety of judgements. The right to marry gives rise to a family which also has to be recognised as a fundamental right. What does a family do? It goes to the core of our being. Our families give us not only love and care but also psychological and economical support. Can we not have the right to have our families recognised?” she questioned, adding that trans persons already have families and adopt children, but these families are not being recognised by the State.
“The Special Marriage Act, and the manner in which it is construed presently by focusing only on men and women, denies transgender persons the right to marry and have a family solely on the basis of their gender identity. That amounts to a discrimination on the basis of sex as per Article 15(1),” she argued, further providing the court with a proposed gender neutral reading of the SMA. By this reading, the words “husband” and “wife” will be replaced with “spouse”, and “man” and “woman” with “person(s)”.
Senior advocate Vrinda Grover’s petitions broadly cover two groups — queer activists, and couples in relationships involving trans persons and cis heterosexual persons. “There seems to be an assumption that families would necessarily be supportive. But the primary source of violence is the natal family. I will show such cases involving 31 persons, coming from rural areas, who can testify to the violence they suffered at the hands of natal families,” she argued. She also contended that the Transgender Persons (Protection of Rights) Act necessitates the recognition of the marriage of trans persons under SMA.
Stating that marriage will be a legal shield for persons experiencing violence from their natal families, she said, “We are canvassing before this court a new imagination of marriage and relationship, that places at its foundation love, care, and respect that does not come from the natal families.”
She also submitted a glossary consisting of respectful and inclusive terms that can be used while referring to LGBTQIA+ persons. The glossary — prepared by The News Minute, Queer Chennai Chronicles, Orinam, and individual contributors from the community — was accepted and endorsed by the Madras High Court as well.
Very happy and proud to note that the @qcchronicles and @thenewsminute led community glossary of LGBTQIA+ terms was submitted to the Supreme Court Constitution Bench hearing the #MarriageEquality petitions today by Senior Advocate @vrindagrover. pic.twitter.com/igE79Lftij
— TheNewsMinute (@thenewsminute) April 25, 2023
Advocate Saurabh Kirpal, referring to section 4 of the SMA that lays down conditions for marriage, argued that the law be read as marriage between any two persons. Taking into consideration that the law did not cover same-sex couples, the counsel contended, “We are not indulging in interpretive exercise to understand what lawmakers in 1954 thought. We do not have the doctrine of original intent in our Constitution. Today's understanding of the Constitution renders this section to be void. We have to ensure the [Constitution] is a living document,” he added.
Advocate Saurabh also argued that the government not allowing non-heterosexual marriages would lead to “lavender marriages,” where a gay man or lesbian woman enters a heterosexual marriage. “If non-heterosexual persons are prevented from marrying, what happens? In our society, lavender marriages would occur. Two lives would be ruined. There's nothing more detrimental than a gay man marrying and cheating a woman that way," he said, adding that people with same sex orientation leave the country because of this.
The advocate also contended that the matter cannot be left to the Parliament to decide. “Having found a right, you cannot say that legislative drafts do not allow it. It is effectively saying that you have the right to marry but it is not workable. The argument is basically that we will leave you to the mercy of the Parliament. But the Parliament has shown us in the last 75 years that when it comes to LGBTQIA+ community, it will not act,” he said.
Senior advocate Menaka Guruswamy submitted that in India, unlike in England, the Parliament is constrained by the Constitution interpreted by the judiciary. “Thus, the Union government cannot say that marriage equality is a matter belonging to the Parliament, as it encompasses fundamental rights,” she said.
The counsel pointed out that judicial review is part of the Constitution’s basic structure doctrine, which refers to the idea that the founding values and core identity of the Constitution cannot be altered by legislative action. Any petitioner can come to the court under Article 32 (right to move the Supreme Court), she said, further arguing that the Indian Parliament is a creature of the Constitution and does not enjoy unfettered powers.
“Marriage offers a bouquet of rights, including gratuity, pension, etc. As these rights are all premised on the understanding of a spousal relationship ascribed by marriage, the petitioners are excluded. Marriage is a matter of conscience under Article 25 of the Constitution,” she added.
Responding to Menaka’s submission about the Parliament’s constraints, the CJI said that the powers of the Parliament to interfere in the matters put forth by the petitioners cannot be disputed. “Entry 5 of the concurrent list specially covers marriage and divorce. So the question really is, which are the interstices left in which this court can interfere. So comparing this with the British parliament may not be a correct one. The test really is, how far can the courts go,” he observed. Even in cases such as Vishaka vs State of Rajasthan, “the framework set out by the court has to be fleshed out by the legislature,” he added.
Menaka then contended that they were asking only for a “workable interpretation of the Special Marriage Act, and the Parliament cannot be the reason to exclude us from this guarantee under the Constitution.”
The bench questioned if the court should stop at substituting “man” and “woman” with “person” and “husband” and “wife” with “spouse” in the SMA. Even if they adopt the course the counsel is asking them to do, this “spouse” will be as per the bench’s reading, and may not be recognised under personal laws, they said. “How many follow ups will we play to the major task of re-enacting other laws? Who will do it? Is this our job? That is the final question,” the bench added.
Observing that there is a lot to be thought about the nuances in the matter, the CJI asked Menaka to deliberate on the perspective of the bench on certain issues, and submit a written note on the same.