The petitioners in the marriage equality case concluded their argument on Wednesday, April 26, the fifth day of the hearing. The counsels for the petitioners raised adoption rights, legal protection for all marriages registered under the Special Marriage Act (SMA) irrespective of gender identity and sexual orientation, and other issues. The Union government started its submissions in the post lunch session on the same day. Solicitor General Tushar Mehta, appearing for the Union government, reiterated that the court leave the matter to be decided by the Parliament. He also argued that the Parliament, while debating the SMA, was aware of the existence of the LGBTQIA+ community and that it had devised the Act to specifically recognise only heterosexual unions.
The bench, headed by Chief Justice of India (CJI) DY Chandrachud and comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, conducted the hearing in hybrid mode. Here is what happened on Day 5.
Advocate Arundhati Katju, who appeared for the petitioners challenging the provisions of the SMA, opened her arguments by saying that the court will not be able to decide all-related issues at the same time. “A number of benefits and obligations flow from marriage. These are complex statutes. LGBTQIA+ couples will come to courts with claims, as these issues arise, just as heterosexual couples have, from the time codification of matrimonial laws began. We are no different, and we ask for the right to not be different. We ask that our differences be ameliorated by our inclusion under this one statute,” she contended.
Arundhati also sought for two declarations — a positive declaration [order] that a marriage registered under SMA will be entitled to all rights and obligations, irrespective of their gender identity or sexual orientation; and a negative declaration [prohibition] that binds the State to not deny rights and obligations to couples whose marriage has been registered under SMA only on ground of sexual orientation or gender identity.
She also argued that LGBTQIA+ couples might wish to raise children, along with getting legal recognition in the sociolegal institution of marriage. “When it comes to the question of having children, it is true that not all couples choose to procreate … [Having children] is something that [queer] couples may long for. There are LGBTQIA+ couples who already have children. By not recognising their marriage, you are depriving the child of [legal] parents. The child cannot suffer because their parents belong to a separate class under Article 15 (prohibition of discrimination),” she argued. Arundhati added that we are “at the cusp of a major social transformation,” and that neither the State nor the court should presume that there would be a certain outcome or difficulties due to the recognition.
Advocate Amritananda Chakravorty, counsel for the petitioners, made major submissions regarding the Adoption Regulations, 2017, that restrict joint adoption to heterosexual couples. “While [heterosexual couples] have the option to marry, LGBTQIA+ couples don't. Discrimination is based on sexual orientation," she stated, pointing out that the Central Adoption Regulation Authority (CARA) bars queer persons in their individual capacities from adopting. She read from a CARA circular that stated that a single person in a live-in relationship with their partner “cannot be considered as a stable family.”
She also contended that all children, including orphans, have the right to a family. “It is not just the right of LGBTQIA+ couples to adopt that is in question. We are also talking of orphaned children. Just because of my sexual orientation, I will be deprived of a child and a child of a family,” Amritananda said. She argued that the petitioners, who are historically discriminated against, deserve as much dignity and protection as heterosexual couples. She also pointed that the Juvenile Justice Act used the word “couple” when talking about adoption, which means that the law technically does not restrict adoption to heterosexual couples.
Senior advocate Jaideep Gupta, appearing for QUASI (Queer and Straight Allies at IISC), a queer collective at the Indian Institute of Science, Bengaluru, that is an intervenor in the case, made submissions with regard to family values. “It is a misconception to say that family values cherished by Indians will be affected [by marriage equality]. It is because of these family values that they [LGBTQIA+ individuals] wish to get married. All values we cherish will come into effect," he argued. He also contended that granting marriage equality will ensure that the community members will be protected from forced marriages and ‘conversion therapy’.
Advocate Karuna Nundy, who appeared for the petitioners, sought a declaration from the court that LGBTQIA+ persons are allowed to marry under the SMA and the Foreign Marriage Act (FMA). She also pointed out that the State already recognises those marriages of trans persons that happen prior to a person’s gender transition.
Responding to this, the CJI observed that the Transgender Act recognises the pre-existing marriage of a trans person, since the person may be already in a marital relationship when they identify themselves as a transgender person. Justice Bhat added, “The law accommodates them because these are not grounds for nullity or divorce. There are other ramifications, like children, dependents, etc.” To this Justice Kaul asked, “Are you saying that because such marriages subsist, that it itself amounts to permission for such marriage subsequently?”
Karuna also argued that the words “husband” and “wife” should not be collapsed into the neutral category of “spouse”, citing heightened protections for women. She instead proposed to use the words “third-gender spouse” or “non-binary spouse”. Acknowledging that the term “third-gender spouse” has been subject to critique by the LGBTQIA+ community, she clarified that she proposed it as it was used in the NALSA judgement.
Solicitor General (SG) Tushar Mehta opened his arguments by saying that it was a “complex subject having profound effects,” and repeated the Union government’s stand that the court should leave the matter to the Parliament. “There are several ramifications not only to society, but also other statutes, which would need debate in society, in state legislatures, in civil society groups,” he said. The SG added that there were at least 160 provisions in multiple laws that would be affected by the petitions.
“Our laws conventionally recognise 'man' and 'woman'. I know the difference between gender and sex, sexual orientation and gender identity. But I am talking about how it is defined in law. Should any change not be the legislature's domain?” he asked. Contending that there was no stigma or value judgement, Tushar said, “Parliament has accepted rights of choice, autonomy in terms of sexual preference, and privacy. Legislative policy is very clear on the Transgenders Act, where it is widely defined to include all genders as we recognise under LGBTQIA+. The only question that remains is whether they can seek legal recognition of marriage through judicial review.”
The SG went on to add, “If it is said that they [lgbtqia+ persons] have a right, how would those rights be regulated? Only Parliament can take care of these. Right to marry is not absolute, and you cannot force Parliament to devise a new conception of marriage. The Parliament may choose to do so.”
He stated that there is no absolute right to marry, even between heterosexual couples. “There are prohibitions relating to age of marriage, bigamy, who you can and cannot marry. My appeal is that rather than taking it any further, this is possibly a subject that should be left to Parliament,” Tushar submitted, adding that only the Parliament can envision the many situations that may arise from the matter and provide for their regulation. “It would be impossible for the court to conceive all the situations,” he said.
Pointing out that the LGBTQIA+ community is a spectrum that includes persons besides gays and lesbians, he said that “the + [in LGBTQIA+] is 72 variations.” He then took the court through different genders. After going through the definition of multiple genders, Mehta contended that the court was “dealing with an unidentifiable class”.
When asked about the source of the list, the SG said that the list was “verified and authentic.” However, the CJI pointed out that the footnote stated that the source was “MedicineNet” (an American medical website).
The SG also argued that there was no prohibition for LGBTQIA+ individuals to marry, but the current discussion was about conferring “a legal status of marriage, which all religions consider as an institution.”
“All six major religions of the world consider marriage as a valuable institution. One principle that is followed is that husband and wife complete each other and transform into a new person; and that children are a sacred gift that is bestowed with marriage and procreation. This idea is not an archaic one. Even under the SMA, the recognition of marriage gives primacy to procreation from marriage,” he argued.
The SG further argued that societal acceptance needed for recognition of a union must be gained through the Parliament. “If it is done by the court, then it is detrimental to the LGBTQIA+ community, since you are forcing something against the will of the people,” he said. He also recalled the former CJI late YV Chandrachud’s observation in the Gurbaksh Singh Sibbia and others vs State of Punjab that the judiciary cannot encroach upon the legislature. He added that the CJI can make the same observation in this case.
SG Tushar then took the court through the Parliament’s debates on SMA to establish that the legislature has debated the subject of same-sex couples. He said that a parliamentarian had, during the debate, asked for 'homosexuality' to be introduced as a ground for debate, instead of “sodomy”. “The Parliament was aware of gays and lesbians. But the House decided that a man must marry only a woman, not a man," Tushar said. Justice Bhat intervened and asked if, during the time of the debate, there were laws anywhere in the world allowing same-sex marriages. The SG contended that even though the legislators were aware of homosexuality, “they consciously avoided it even as a ground for divorce under the SMA."
The court adjourned for the day at 4 pm. 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 SMA, Hindu Marriage Act (HMA), and others, the apex court has decided to restrict the hearing only to the SMA. The hearing will continue on April 27.