SC Delivers Verdict On Same-Sex Marriage: Highlights From 10-Day Marathon Hearing

The Supreme Court has pronounced its verdict on the legalisation of same-sex marriage on Tuesday, months after it heard the arguments of petitioners and the Centre and others for ten days.

SC verdict on same-sex marriage today.

Source : Getty Images

A five-judge constitution bench of the Supreme Court on Tuesday delivered its verdict on the pleas seeking legal validation of marriage of same-sex couples. The bench, led by Chief Justice of India DY Chandrachud and comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, heard the petitions on April 18, 2023. After continuous and rigorous deliberations for ten days, the bench reserved its judgment on May 11, 2023.  

The decision holds significance for the people belonging to the LGBTQIA+ community who have been fighting for equal rights in the country on a range of issues. Here’s what the case is about and what happened during the hearing. 

What Is The Case? 

Twenty petitions were filed by same-sex couples, and other LGBTOIA+ activists challenging the provisions of the Special Marriage Act 1954, Hindu Marriage Act 1955, and the Foreign Marriage Act 1969. The petitioners’ focus was that these legislations, in their present form, do not recognise non-heterosexual marriages. They argued that this non-recognition is discriminatory against the LGBTQIA+ community. 

Simply, the couples are seeking equal benefits, as availed by any heterosexual couple, in the matters of insurance, adoption, and inheritance. 

 

Maintainability Of The Petitions  

Centre: At the beginning of the case, the Centre asked the apex court to dismiss the batch of petitions on grounds of maintainability. It submitted that marriage, a socio-legal institution, could only be created, recognised and regulated by the competent legislative body under Article 246 of the Indian Constitution, quoted Live Law. 

The Government of India said the courts lack the authority to create or recognise marriages through judicial interpretation or legislative adjustments.  

 

Petitioners: The LGBTOIA+ activists and same-sex couples argued that the right to marry for non-heterosexual couples is implicit in Articles 14 (Equality), 15 (Non-Discrimination), 16 (Equality of Opportunity in Public Employment), 19 (Freedom of Speech), and 21 (Right to Life). He said that this becomes clear especially after the top court’s rulings in ‘Navtej Singh Johar vs. Union of India’ (2018) decriminalising homosexuality by striking off Section 377 IPC, and ‘KS Puttaswamy and Anr. vs. Union of India’ (2017), which upheld the fundamental right to privacy, respectively. 

 

SC Limits Hearing To Ambit Of Special Marriage Act  

The Supreme Court had made it clear that it would, as of now, limit itself to the ambit of the Special Marriage Act and would not interfere in personal laws. This nullified the pleas challenging the Hindu Marriage Act.  

Justice Kaul had remarked: "Sometimes incremental changes in issues of societal ramifications are better. There is time for everything."  

 

Centre’s ‘Urban Elitists’ Argument, Supreme Court Disagrees  

According to Live Law, the Centre in its second counter affidavit contended that marriage was "an exclusively heterogenous institution", arguing that those seeking marriage equality in India merely represent "urban elitist views for the purpose of social acceptance" and that the popular will of people was that marriage be recognised solely amongst heterosexual individuals.  

However, the top court disagreed with the idea and said that it could not dub homosexuality and the idea of marriage equality as an "urban elitist" concept, especially in the absence of any data to back this claim.  

 

Discussion On Man, Woman And Gender Fluidity  

Petitioners: Appearing for the LGBTOIA+ activists and same-sex couple, advocate Mukul Rohatgi spoke around the interpretation of the SMA, 1954 arguing that the same is reworded to read marriage as between spouses instead of “man and woman”. According to an Indian Express (IE) report, Rohatgi highlighted Section 4, SMA, which refers to a marriage in gender-neutral terms, between ‘any two persons’. 

He said that simply amending the SMA isn’t enough and a constitutional declaration of marriage is needed, similar to that of the heterogeneous group, he said. "This court needs to push society to acknowledge same-sex marriage," Rohatgi said, as quoted by the IE. 

Senior Advocate Menaka Guruswamy said that the right to marry is accompanied by several benefits and rights, such as pensions, provident funds, etc. 

CJI On Man And Woman: Chief Justice DY Chandrachud observed that the concepts of a biological man and woman were not absolute and depended on more than just physical characteristics. Solicitor Genera Mehta disagreed and said: "Biological man means biological man, there is no notion."  

As per Live Law, CJI Chandrachud replied: "There is no absolute concept of a man or an absolute concept of a woman at all. It's not the question of what your genitals are. It's far more complex, that's the point. So even when Special Marriage Act says man and woman, the very notion of a man and a woman is not an absolute based on genitals."  

 

'Extraordinarily Inclusive Indian Culture '  

During the hearings, CJI DY Chandrachud emphasised that Indian culture had a long history of inclusivity, and British Victorian morality had influenced the exclusion of queer individuals. The court noted that the imposition of Victorian morality in the 19th century led to the criminalisation of homosexuality in India.  

 

Bar Council Of India Asks To Leave Issue To Legislative Process 

The Bar Council of India, during the hearing, urged the Supreme Court to leave the issue of legal validation of same-sex marriage to the legislative process. The bar council argued that marriage had traditionally been viewed as a union between a biological “man and woman”, with procreation and recreation as its primary purposes.  

"Ever since the inception of human civilisation and culture, marriage has been typically accepted and categorized as a union of biological man and woman for the twin purpose of procreation and recreation”, the BCI said, adding that it would be "catastrophic" to overhaul something so fundamental through the judicial process. The legislature, being truly reflective of the will of the people, is best suited to deal with such sensitive issues, added the council.  

 

Gender Neutral Terms In Special Marriage Act  

Another important part of the discussion was the insertion of gender-neutral terms in the Special Marriage Act. This gave rise to huddle on minimum age of marriage. Arguing for petitioners, as per Indian Express, Singhvi submitted that for lesbian couples, the minimum age could be prescribed as 18 years, while for gay couples, it could be 21 years. For transgender couples, the same ages would apply based on the gender they identify with. 

Justice Hima Kohli and Justice Ravindra Bhat expressed concerns, emphasising the need to move beyond male and female distinctions. Rohatgi proposed using a gender-neutral term like "person" in the provision, but the judges highlighted the trouble of having dual ages (18 and 21) if gender-neutral terms were employed. 

 

Centre Agrees To Examine Issue Of Granting Certain Rights, But Not Legal Recognition  

As the hearing continued, the Central Government agreed to constitute a committee to examine whether certain legal rights could be granted to same-sex couples, without legally recognising their relationship as a "marriage".  

This came after the bench asked SG Tushar Mehta to get instructions from the government on whether certain rights can be granted to same-sex couples to ensure their social security and welfare. The Constitution bench had asked if any executive guidelines could be issued so that same-sex couples could avail of benefits such as opening joint bank accounts, nominating partners in life insurance policies, provident funds etc. The Centre agreed to this.