The five-judge Constitution Bench of the Supreme Court is all set to deliver its judgement on a batch of petitions seeking marriage equality in India, on Tuesday, October 17. The Constitution bench of the Supreme Court led by Chief Justice DY Chandrachud, comprising Justices SK Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha began hearing a series of petitions on marriage equality. Starting from April 18, the hearing continued for a span of ten days. Here’s a quick recap of important things that transpired in the court.
Main issues raised in the batch of 15 petitions
> Granting legal recognition to marriage equality in India
> Examination of constitutional validity of Special Marriage Act 1954, Hindu Marriage Act 1955 and Foreign Marriage Act 1969 which employ gender specific terminology while defining marriage.
> While the petitions challenged 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.
> Determining whether right to marriage equality flows from right to dignity, personal autonomy and self identification as emphasised by the SC in National Legal Services Authority versus Union of India (2014) and decriminalisation of same sex relations in Navtej Singh Johar versus Union of India case (2018)
What transpired during the hearings?
Day 1: The hearing started contentiously when Solicitor General (SG) of India Tushar Mehta questioned the Union government's involvement. This came after the court dismissed the government's initial objections that Parliament should handle the matter. The court opted for a step by step approach, focusing on inclusivity in SMA. CJI Chandrachud and SG Mehta disagreed with the biological determination of gender. CJI said, "There is no absolute concept of a man or a woman." This followed SG Mehta's opposition stating that marriage traditionally involves a "biological man and a biological woman," even under SMA.
Read: Day 1 of marriage equality hearing: CJI says ‘man’ and ‘woman’ not absolute concepts
Day 2: SG Mehta informed that the Union government filed a new affidavit, including all states and Union Territories as parties. The court noted that no evidence was presented to support the Union government’s claim that non-heterosexual marriage is an “urban elitist concept”. The court asked the petitioners to propose how individuals within the LGBTQIA+ spectrum would be included in potential amendments to the SMA. Making observations differing from the Union government’s argument, the CJI said, “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.”
Read: LGBTQIA+ marriage equality: Innate characteristics can’t be called elitist, says CJI
Day 3: The discussion centered on upgrading the definition of marriage in Indian law, adoption rights, marital rape, and the requirement of a 30-day notice for couples marrying under the Special Marriage Act (SMA). CJI asked if the relationship between a man and a woman is so fundamental to our law that including same-sex couples would be “redoing the tapestry of the legislation.”
Read: ‘Is gender binary fundamental to law?’: CJI asks on day 3 of marriage equality hearing
Also Read: Notice period under Special Marriage Act patriarchal: SC at marriage equality hearing
Day 4: The court told the petitioners that Parliament holds authority over incorporating gender-neutral scenarios in SMA. The court also conveyed that reading gender-neutral situations under SMA would require changes to personal laws as well. The counsels of petitioners also put forth their arguments regarding interpretation of the laws and rights of individuals under the Indian Constitution.
Read: On Day 4 of marriage equality hearings, counsel seeks a new imagination of family
Day 5: The court noted that a person can identify as a transgender within an existing marriage, and this is not prohibited by the Transgender Persons (Protection of Rights) Act, 2019. The court reproached SG Tushar Mehta for referencing the Dobbs versus Jackson Women’s Health Organization case (2022) that took away the right to abortion from US citizens, and asserted that Indian courts have a more progressive stance, recognizing women's right to bodily autonomy. In response to Mehta's claim that the Special Marriage Act was designed for inter-caste marriages, the court remarked that the legislation was intended to be neutral with regard to religion.
Read: Marriage equality hearing: Petitioners demand rights, govt says leave to Parliament
Day 6: The court acknowledged that adopting the petitioners’ proposal to include gender neutral scenarios in SMA would likely entail rewriting the law. The constitution bench 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. The court stated that if the State is unwilling to recognise non-heterosexual unions as marriages, some institutional label must be assigned to such unions.
Read: Marriage equality hearing: SC calls govt’s incest argument far fetched
Day 7: SG Mehta informed the court that the Union government is prepared to address the matter administratively by forming a committee to study and address the challenges faced by the LGBTQIA++ community in their daily lives. 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. The court asked the petitioners to reconsider whether they seek a ruling from the court, as the broader concerns of the LGBTQIA++ community might not be fully addressed by the Special Marriage Act. The petitioners unanimously conveyed hat the right to marry is an inalienable right, which ultimately falls within the court's purview to decide.
Read: Marriage equality hearing: Govt says recognition of marriage not a fundamental right
Day 8: The court said that all essential components of marriage are safeguarded by constitutional values and the right to marry encompasses the right to cohabit. While the CJI outlined certain elements as fundamental to marriage, Justice Bhat expressed that these aspects are ultimately determined by the parties involved. 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.
Read: ‘Indian Constitution is a tradition breaker’: SC on day 8 of marriage equality hearing
Day 9: As the hearing was nearing an end, there was a debate about whether the court should issue a declaration on the right to marry, leaving the rest to Parliament. The Union government clarified that a declaration alone would be legally binding, urging the court to abstain from making one. The Union government updated the court on the responses recieved from the state governments, including Manipur, Andhra Pradesh, Maharashtra, Uttar Pradesh, Assam, Sikkim, and Rajasthan. While all states sought more time for consideration, Rajasthan and Andhra Pradesh opposed recognsing non-heterosexual marriages.
Day 10: On the last day of the hearing, the petitioners submitted their rejoinders and responses to the arguments of the government respondents and intervenors. The petitioners sought a gender-neutral interpretation of the SMA, and added that this shall not impact any other gender-specific laws, including penal laws or religious personal laws. They also argued that the the feasibility of an issue should not hold the court back from declaring that there is a right to marry and stated that if the declaration is made, it will be worked by the Parliament.
Read: Marriage equality hearing concludes, SC reserves judgement