The Constitution of India is a “tradition breaker”, the Supreme Court observed on the eighth day of the marriage equality hearings on Tuesday, May 9. While hearing the arguments of the respondents, the court pondered the meaning of marriage and suggested that it depends on what the spouses define it to be — an idea that was opposed by government respondents. The bench led by Chief Justice of India DY Chandrachud, comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, conducted the hearing in hybrid mode on the day.
Senior advocate Rakesh Dwivedi, appearing for the state of Madhya Pradesh, continued on his submissions and questioned if there is a fundamental right to same-sex marriage that flows from Article 14 (equality before law), 15 (prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth), or 21 (protection of life and personal liberty) of the Constitution of India.
The bench countered this by asking if anybody has a fundamental right to marry at all. “We have placed the individual at that highest pinnacle and we have gone ahead and carved out so many rights — the right of personhood, choice, privacy, autonomy, dignity — which are part of the Preamble. With all this, does a person have a right to marry? What is the right to marry? Is there such a right?” asked Justice Bhat. Rakesh Dwivedi argued that heterosexual couples can marry as per their personal law, custom, and religion.
Taking the argument forward on the lines of custom, culture, and religion, Justice Bhat observed that the context of marriage has changed, and cited how intercaste marriages were not permitted 50 years ago. "The moment you bring tradition, the Constitution itself is a tradition breaker. Because the first time you brought in [Article] 14, you brought in [Article] 15, and [Article] 17 [Abolition of Untouchability], those traditions are broken. If those traditions are broken, what is held hallowed in our society in terms of caste? We made a conscious break and said we don't want it. We went so far as to hold untouchability as unconstitutional. I don't think any other Constitution says that. Traditions are there to the extent they are there. But at the same time, let us be alive to the fact that the concept of marriage has evolved," Justice Bhat observed.
During the course of the hearing, Justice Bhat made another observation that marriage is what the parties concerned define it to be. "What is marriage to each other? The content is decided voluntarily by each party. The spouses decide whether to have children — it's entirely their choice. There may be marriages where parties may not live together. There may be no matrimonial home. Marriages may not have any element of physical or sexual relations. So what the content central to marriage is, is upon the spouses," he said.
Dwivedi, however, insisted that the legislature must be the deciding authority and argued that if marriage is treated as an individual concept where spouses define what it is, there will be no law. He also argued that marriage is not a simple contract but “the most sacred phenomenon”.
The CJI, meanwhile, pointed out that when one says marriage is a sacrament, they will have to accept that marriage as a sacrament traces its origin to Article 25 (Freedom of conscience and free profession, practice and propagation of religion). Besides, there are three layers to the issue: constitutional recognition of marriage; administrative or civic incidents of that relationship; and legislative recognition, he added.
Senior advocate Kapil Sibal, appearing for Islamic organisation Jamiat Ulama-i-Hind, argued that any law requires discourse both inside and outside the Parliament. He said a court declaration that it is a fundamental right and that it has to be recognised, will “close the debate in Parliament”, further arguing that the court is dealing with “sexual unions and recognition of sexual unions by the state”, and that such recognition should not be done through a declaration.
Pointing out that the court has issued declarations in the past to add to the scope of fundamental rights including the right to a clean environment, and right to education, the CJI said Sibal’s argument that the court cannot issue a declaration is incorrect. Sibal claimed that the declaration of recognition would amount to an imposition on others, adding that the process first needs recognition, then evaluation, and then legislation.
Sibal also argued that there were three levels to acceptance of same-sex marriages, that is by individuals, by family, and then by society. “You cannot equate a practice that has been sanctioned for hundreds of thousands of years with a union. You cannot essentially equate these two unions in one class. Just as you cannot deal with transgender [persons] in the same class as same-sex [couples],” he argued, and suggested that while their right to sexual identity can be declared, the rest is up to the legislative process.
The counsel also contended that while this moment should be celebrated for opening a discussion, it should not “overreach”. “It must recognise the reality and set systems in place for the state to move forward. Without moving forward, many of these people would be discriminated against. The government can ponder over how it should be done,” he argued.
Senior advocate Arvind Datar, appearing for one of the intervening petitioners, argued about the Constitutional validity of the Special Marriage Act (SMA). “If a law has been made to recognise interfaith or intercaste marriages, we must test the Act with the stated objective by which the Parliament enacted it,” he said, and contended that it cannot be imagined what kind of collateral damage will be caused on other statutes if same-sex marriage is recognised.
Stating that the decriminalisation of same-sex relations in the Navtej Singh Johar case was historic, he argued that if making the declaration came under the domain of the judiciary, we must ponder if developing it further is in the legislative domain. He also argued that the recognition of same-sex couples is a “newly recognised right” and that it would be dangerous if these “newfound rights are retrofitted into old statutes.”
The bench has posted the next hearing to Wednesday, May 10.