On Thursday, April 27, the 6th day of the marriage equality hearings, the Supreme Court asked the Union government what it plans to do to ensure the social security and welfare of couples in legally recognised cohabitation other than marriage. The Constitution bench, led by Chief Justice Chandrachud (CJI), underlined that the welfare of such couples is the responsibility of the government, and while the law has gone so far as to decriminalise consensual same-sex relationships, it is the government that should now ensure that LGBTQIA+ couples are not ostracised.
Solicitor General (SG) Tushar Mehta, appearing for the Union government, reiterated his earlier argument that the matter must be left to the legislature. However, even before the session started, the bench hearing clarified that there shall be no repetitive arguments ‘causing mental fatigue’, adding that no more arguments will be entertained about leaving the matter to legislative exercise.
The bench, comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, along with the CJI, conducted the hearing in hybrid mode. Justice Kaul reiterated that the court will not touch personal laws, religion, or adoption issues. The CJI also said that the challenge against the marriage notice as mandated by the Special Marriage Act (SMA) can be assigned to a two-judge bench as a separate matter. However, no order was passed in this regard.
Here is what happened on Day 6 of the Supreme Court hearings on the batch of petitions demanding marriage equality for individuals of the LGBTQIA+ community.
The SG, on behalf of the Union government, argued that the right to love, cohabit or choose a partner is not contested, but that is “no fundamental right to seek the recognition of that relationship in the form of a marriage”. The CJI responded that the social welfare of these couples, whose cohabitation is considered legal, is the responsibility of the government. “Once you recognise there is a right to cohabit, it means that it might be a sustained relationship. It is the obligation of the State that all social impact of cohabitation has legal recognition,” the bench observed and pointed out that currently, LGBTQIA+ couples cannot have a joint bank account or nominate each other for insurance benefits.
“We would be more than willing to have the government make a statement before us. You have ministries dedicated for this purpose: social justice and empowerment, Ministry for Women and Child Development,” the CJI said. The SG responded that he will get back after discussions with the government.
The bench also stated that the limitations of the court are understood and that the relationship of the court with the government cannot be adversarial. “There are so many issues in which your ministries can, on the administrative side, find solutions. Maybe we can act as facilitators. The relationship between the court and the government is not really an adversarial relationship. We're pushing the government on socio-economic matters. The reason why we're trying to push you to this is because we take your point that the court's remit is not to legislate. But short of that, our law has gone so far. What does the government want to do to ensure that these relationships are recognised to ensure security, and social welfare? And then these relationships will cease to be ostracised. Despite the government's affidavit, we have a law such as the Transgender Persons Act. Look at the vision of that legislation,” the CJI observed.
Justice Bhat added to the observation by pointing out that the Vishakha judgement was initially limited to public sectors, but later became a wider Act, and so did the Domestic Violence Act, which was enacted because of a movement. “Then came the Transgender [Persons] Act. So collaboration has been happening,” he said.
Justice Kaul also pitched in and said that the decriminalisation of Section 377 was an indirect recognition that such relationships can prevail. “Once such status can prevail, logically, different social ministries would have gone into a study on how to tackle other problems arising from this. So you may check up if any thought process has been worked out in ministries in the last 5 years,” he directed the SG. However, the SG argued that the decriminalisation was not meant to allow marriages.
The SG further argued that the petitioners want to “rewrite, restructure, and reengineer the SMA to suit a particular class of people”, questioning if an Act can apply differently to different groups of people. He further contended that the fundamental argument of the petitioners hinged on the right to “choose their sexual orientation”. But the CJI interrupted him and asserted that sexual orientation is not a matter of choice but an innate characteristic of an individual.
The SG then submitted against the petitioners’ right to sexual orientation by saying that sexual autonomy might be used to challenge the prohibition on incest. The CJI, however, observed that the argument was far-fetched and that “it cannot be argued that sexual orientation is so strong that incest be allowed”.
The counsel for the Union government also contended that a marriage can only be a union between a man and a woman, and cited Section 4(a)(ii) of the SMA to validate his point. The said Section lays down some conditions that are necessary for the solemnisation of a marriage under the Act. It says that “though capable of giving valid consent” if the person “has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children”, the marriage cannot be solemnised. The counsel argued that “procreation necessarily means the union between man and woman.”
The CJI responded that this is not always the case. “Emphasis in that provision is not so much on procreation as it is on mental illness. In the case of a heterosexual couple, the fact that one of the spouses cannot procreate doesn't render that an invalid marriage. Suppose the girl has had a hysterectomy when she was a child, she can still have a marriage,” he observed.
The SG also argued that if the words “husband”, and “wife” are replaced with “spouse”, one person will have the right to claim maintenance from the other. “Meaning, in the case of heterosexual marriages, the husband can claim from the wife. We cannot just say decide the issue and leave individual cases for future adjudication. Issues will arise all across the country. Who will be the wife in a gay marriage and in a lesbian marriage? How are rights granted to her like maintenance [in case of divorce]?” he pressed.
The SG also took the court through multiple provisions, including the Dowry Prohibition Act, and Sections of the IPC that use the terms ‘man’ and ‘woman’. He also cited Section 10 of the IPC which defines “man” as a male human being of any age, and “woman” as a female human being of any age.
CJI Chandrachud observed that the SG was putting forth three major problems through his arguments against marriage equality: that it will involve substantial re-writing of existing legislation, interference in matters of public policy, and that it will also interfere with personal laws.
Arguing that fundamental rights are not violated by not recognising certain relationships as marriages, the SG contended that the Transgender Persons Protection Act provides affirmative classification for a class of persons defined in Section 2(k) of the Act to protect Articles 14 (equality before law), 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth), 19 (right to freedom of speech and expression), and 21 (protection of life and personal liberty) rights of all categories of LGBTQIA+ persons, as enshrined in the Constitution.
The SG went on to read Section 2(k), which defines a transgender person. “It means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer, and person having such socio-cultural identities as kinner, hijra, aravani and jogta,” he said, and added that it includes “all categories”.
While the CJI pointed out that this does not include persons with non-heterosexual orientations as they are not transgender persons, the SG argued that “they would be genderqueer”. However, senior advocate Saurabh Kirpal and the bench corrected him by pointing out that while one is the gender of a person, the other is their sexual orientation.
Further, the CJI also differed with the SG when the latter argued that lesbians or gays are “not stigmatised or facing problems.” “They are very badly stigmatised. In fact, the parliamentary debate on the 1954 Act shows that there was a considerable degree of stigma attached,” the CJI corrected.
The SG also argued that marriage is not a ‘sine qua non’ (essential) for personal liberty and that the “State preferred heterosexual couple child-rearing”. “For enjoyment of the right to cohabit, you do not need a recognised institution of marriage…Since this movement [LGBTQIA+ movement] started 20-30 years ago, there is no concrete data on adoption, etc., and to make decisions based on this now will be hazardous and based on guesswork,” he submitted.
The court will continue hearing the case on May 3.