The Union government on Wednesday, May 3, informed the Supreme Court that it is willing to set up a committee headed by the Cabinet Secretary to examine the administrative steps it can take to address the concerns regarding basic social benefits for LGBTQIA+ couples. A five-bench Constitution bench headed by Chief Justice of India (CJI) DY Chandrachud is hearing a batch of petitions seeking marriage equality for the seventh day on Wednesday.
Solicitor General (SG) Tushar Mehta, appearing for the Union government, submitted before the bench that the issue is of “genuine human concern,” and the government is ready to hold discussions on what can be done administratively. Stating that this would need coordination by different ministries, Tushar said that a committee headed by the Cabinet Secretary will be formed to look into it. He also said that suggestions and issues raised by the petitioners will be addressed so far as legally permissible.
Senior advocate AM Singhvi, representing one of the petitioners, pointed to the use of the term "administrative" by the SG to state that cosmetic changes will not do when the petitioners have been asking for changes in the legal regime. Senior advocate Menaka Guruswamy, also appearing for the petitioners, said that only a marriage can provide the requisite social security net and is of the opinion that administrative changes may not be the best course of action. Senior advocate Saurabh Kirpal, who also appeared for the petitioners, argued that LGBTQIA+ persons need the right to marriage and sought recognition of marriage under section 4 of the Special Marriage Act (SMA).
Justice Kaul pointed out that even if the court grants marital status, there will be many changes required in administrative and legislative aspects. “They [Union government] are reluctant to give the status of marriage but they are not reluctant to sort out the problems arising from gay companionships, without elevating it to marriage. Therefore, the suggestion from the bench is that some endeavour shall be taken in the direction of addressing the nitty gritties of what needs to be done. So let us accept without pre-notions,” he said.
CJI Chandrachud asked the petitioners and the counsels representing the government to discuss the administrative steps that can be taken before the next hearing scheduled for May 9.
The CJI also observed that legislative changes are inevitable when it comes to marriage equality. Pointing out that the main argument of the petitioners was the right to marry under the SMA, the CJI said that the court will decide the issue as a concept but the government can take one step forward by recognising the cohabitation of same sex couples, which will be a big step. “You have argued to locate the right to marry in section 4 of the SMA, but suppose we come to the conclusion that this argument is not as simple as it appears to be and there are too many linkages, including with personal law, which we would have to tread upon and perhaps which lies outside judicial review, then what? Suppose if we don't do that, we don't want a situation where there's nothing else available at hand,” he said. Justice Bhat added that this is the first step in the direction of a discussion, and was not the end of the road.
SG Tushar argued that recognition of marriage was not a fundamental right. “It is their intimate relationship, the state has no right to regulate or recognise,” he said and added that the recognition came into place because the State felt that there was a need to regulate marriages. “The State should step in only when the State feels that it is in legitimate interest to regulate a relationship and recognition is only a consequence of that,” he told the court.
The CJI, however, pointed out that the argument of the petitioners was not that the government was “duty bound to recognise all relationships” but that by not recognising same-sex marriage, it was acting in a discriminatory way. “The argument is of the anti-discrimination principle. They say that marriage is a vital institution, same-sex couples are entitled to the same right to dignity, and not recognising that relationship would deprive them of societal benefits attached to marriage,” he observed. The SG responded that the government's recognition of only heterosexual marriages was based on the doctrine of reasonable classification. The doctrine of reasonable classification means that governments can ‘classify’ people into different groups and treat them differentially. Such classification can only be reasonable and not arbitrary or discriminatory.
Attorney General (AG) R Venkatramani argued that the SMA was a law related to the institution of marriage, and does not create the institution of marriage itself, and thus it is not a discriminatory legislation. “A hidden provision cannot be retrieved if it was never present there and similarly there is no question of same-sex marriages under special marriage act. It has to be looked at from this prism. Something can be read into a statute only if there was ever an intention to include it,” he argued.
The AG also contended that a law can be updated only when the concerned law fails to realise its avowed purpose, and not when “an alien purpose” is sought to be brought into the scope of law. “The question of altering the text by process of interpretation only arises when its purpose is not realised, or to save it from invalidity. SMA not being unconstitutional, the question of reading down/in may not arise. Constitutional declarations on the right to family, and marriage of non-heterosexual persons have already been made while invalidating section 377 of the Indian Penal Code and delineating the rights of transgender persons. The question now is to fit these declarations into the fabric of relevant law. SMA may not serve this purpose. Considering the multiple dimensions of the issue, it should be addressed by a comprehensive stand-alone law dealing with claims of non-heterosexual persons,” he argued.
The CJI observed that the AG’s argument was that inclusion of same-sex marriages in the SMA would not just involve tweaking of the law but the whole host of legislations.
Senior advocate Rakesh Dwivedi, appearing for the state of Madhya Pradesh, opened his submissions with the argument that substituting the words “husband” and “wife” with “spouse” in the SMA is undignifying to heterosexual couples. “Spouse is a flexible word grammatically. But in the context of the Act, spouse means ‘husband’ or ‘wife’. Is it a simple substitution? You [petitioners] set up your claim based on choice, autonomy, dignity, etc. Is there no dignity for heterosexuals?” he asked. Rakesh added that the heterosexual marital relations have been considered “meaningful since antiquity.”
“While claiming dignity, you should not inflict indignity, whether traditionally, culturally, historically, or socially. These are valuable things. They may not have meaning to people who don't attach value to it,” he contended. Rakesh further argued that the law was meant for unions between heterosexual couples and sought the court to not dilute its status. He also stated that marriage was all about “social acceptance.” The CJI observed that Dwivedi’s contention was that recognising anything apart from a union between a heterosexual couple affects traditional values.
Rakesh stated that replacing the words “husband” and ”wife” with “spouse” might interfere with laws on bigamy. He further contended that the Parliament should make decisions in this matter. To this, the CJI said, “Suppose there is a same sex couple and they are in a relationship and they marry a person from another sex. For instance, two men are in a relationship and one of them marries a woman, then there will be no bigamy. In other words, your submission is that in order to take care of a myriad situation, it's for the lawmaking body to enter upon this situation.”
Rakesh also argued that legal recognition of marriages should be arrived at through debate and social acceptance and that the Parliament should feel more confident that something can be done. “The Parliament, which has the pulse of the people in hand, is in the best position to decide when to take the next step, what should be the next step, and how it should be brought about. Don't force it as the whole social fabric can be ripped apart. We don't know what consequences it will have. Slowness is the way forward in such matters, not speed,” he told the bench.