Is the demand for marriage equality among LGBTQIA+ persons an “urban elitist concept” as the Union government has claimed? As the hearing of the marriage equality petitions entered its second day on Wednesday, April 19, Chief Justice of India (CJI) DY Chandrachud has made observations differing from the Union government’s argument. “Something which is innate cannot have a class bias. It may be more urban in its manifestations because more people in urban areas are coming out of the closet. There is no data coming out of the government that this is urban,” the CJI said.
The batch of at least 15 petitions, which is being heard by a five-judge Supreme Court Constitution bench led by the CJI, has paved way to 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. Besides the CJI, the bench comprises justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha. Here is what happened at the court on day 2 of the hearing.
Continuing on his submissions from day 1 of hearing, senior counsel Mukul Rohatgi, one of the lawyers for the petitioners, made broader submissions seeking an explicit declaration that grants marriage equality to everyone. By declaration of marriage, what one is really requesting is that they should be able to walk into a public space with their partner knowing that the law and the state recognises this union as a marriage, and that there will be no stigma, he said.
“Society accepts what the law is,” Rohatgi further said, citing the example of the Hindu Widows’ Remarriage Act which came into effect in 1856. Society was not even ready for it till the 1900s, and the law acted with alacrity there, he added, and asserted that society should be told to respect same-sex couples as equals in all regards because the Constitution says so. In response, Justice Sanjay Kishan Kaul said this was a “double edged sword”, as the opponents were arguing that the Parliament will do it when society is ready.
Rohatgi contended that even if one person’s fundamental right was being clouded by the majority, or by the state that accepts the majority as correct, they have a right to go to court. “If this court fails to remedy it and asks to go to the Parliament, then it fails in its duty. I have no representation in the Parliament and that is why it is the courts we come to,” he said.
Rohatgi also discussed various provisions of the SMA and pointed out the terms and phrases in the Act that should be made gender-neutral, such as replacing the words “husband” and “wife” with the term “spouse”. He suggested that Section 4(c) of the Act — which stipulates that a man should be of at least 21 years of age and a woman 18 to get married — be left as it is. Justice Ravindra Bhat, however, questioned this suggestion, asking how the identities beyond male and female on the spectrum will be accommodated.
Senior advocate AM Singhvi, who is also appearing for one of the petitioners, dealt with three broad submissions: (1) interpreting the SMA in a non-discriminatory way, (2) challenging the notice and objection regimes under the SMA, and (3) tailoring a remedy for this. Advocate Singhvi opened his arguments by saying that at the heart of the case was not the statutory provisions or the notice-objection regime per se, but the right to choose and have a marital relationship regardless of gender or gender identity. “The obverse heart of the case is discriminatory denial to a section of the community based on their sex, sexual orientation, gender, or gender identity,” he said.
Recalling that the decriminalisation of Section 377 was an anti-discriminatory move, Singhvi said the court was now “knitting a more seamless web of anti-discrimination on several other facets.” One of these is the recognition that it was not the state alone that threatened the facets of equality but also non-state actors and private groups, Singhvi said, seeking protection from these groups. He put forth the example of vigilante groups who moral police couples in the wake of the SMA’s notice and objection regime. The SMA mandates that couples who want to register their marriage should give a 30-day notice period, during which anyone is free to raise objections.
When asked how declaration of marriage will grant protection to individuals, Singhvi elaborated by saying that the legalisation of same sex marriage will put individuals at the right side of the law. “Your lordships may not eliminate murder but your lordships will say murder is wrong. Once you declare this, I'll be on the right side of law, and the first consequence of this is that I am entitled to seek state protection against invasion,” he contended.
Justice Bhat asked what prevents the state from protecting the individuals, given that Section 377 was decriminalised. “Decriminalisation is a very small part. It doesn't give me any rights once I'm in a marriage,” Singhvi responded.
He also put forth five reasons for marriage: (1) community and social validation of relationship, (2) sense of security, (3) greater financial support and security, (4) other consequences including adoption rights, and (5) the ability to have and enjoy a family life.
At this point, CJI Chandrachud made an important observation regarding adoption rights. Stating that one of the partners in a gay or lesbian relationship can adopt a child, he said the argument about children being impacted if they are raised by an LGBTQIA+ couple is belied. “It is just that the child loses the benefits of parenthood of both the parents,” he said.
Addressing the Union government’s argument that marriage is "socially, culturally, and legally ingrained", advocate Singhvi said the government failed to note that the SMA was created as an alternative to socially ingrained concepts of marriage. “The SMA is a non-religious marriage related legislation. This addresses the point of the respondent which is ‘cultural understanding of marriage as a union’. Cultural understanding of marriage was not the basis of SMA. Special Marriage Act is a non religious mode of marriage,” Singhvi contended.
CJI Chandrachud noted Singhvi’s argument that the SMA was intended to be agnostic to faith. “So by reading it as agnostic to sexual orientation, you are not making a leap of faith,” he said.
When Singhvi pointed out the practice of “discriminatory exclusion” based on sex and sexual orientation alone, CJI Chandrachud concurred and said that the state cannot discriminate against an individual on the basis of a characteristic over which a person has no control. “When you say that this is an innate characteristic, it's also an argument in response to the contention that this is very elitist or urban or it has a certain class bias. Something which is innate cannot have a class bias. It may be more urban in its manifestations because more people in urban areas are coming out of the closet. There is no data coming out of the government that this is urban,” he said. Singhvi then contended that every statement in the counter affidavit filed by the Union government was made without citing a single survey, data, or test.
At this point, counsels appearing for transgender petitioners interjected and pointed out that their petitioners were disowned by their families at a young age and branding them to be "urban elitist" was wrong and showed an absolute lack of grace.
Meanwhile, the Union government on Tuesday filed another petition urging the Supreme Court to make all state governments and union territories parties in the case. “In the absence of notice to the states and union territories on the present issues, the Union government has started the exercise of consultation with all the states, in order to ascertain the views of the states on the said issue,” the affidavit said. It added that a letter has been sent to all states and UTs inviting comments and views on the issue, as it has far reaching implications.
As an alternative, it has also sought the court to allow the Union government to finish the consultative process with the states, obtain their views/apprehensions, compile the same and place it on record before the court, and then proceed to adjudication of the matter. In its letter to the states, the Union government has said that a request for states to be parties is under consideration, and if the court didn’t issue a notice to the states, the states will have to expedite their submissions in the matter.
#Breaking: Centre files a fresh affidavit in the #SupremeCourt urging it to make all the state governments and union territories party to the petitions seeking recognition of same-sex marriage. pic.twitter.com/jfVrgedirZ
— The Leaflet (@TheLeaflet_in) April 19, 2023