Same-Sex Marriage: A constitution bench of the Supreme Court comprising (CJI) DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, PS Narasimha and Hima Kohli on Tuesday began hearing the petitions seeking legal validation of the same-sex marriage. It comes four years after an apex court bench of similar strength had struck down Section 377 of the Indian Penal Code (IPC), decriminalising same-sex relations between consenting adults. It went on to become a landmark judgment in the judiciary’s history in the country. 


However, same-sex couples later found trouble with basic things which are easily available to any heterosexual couple in the country. This includes- registration of marriage, spouse insurance, participation in welfare schemes, adoption of a child and many more. This led to pleas by two gay couples seeking recognition of same-sex marriage under the Special Marriage Act. This means that the couples sought legalisation under Indian law and validation of the marriage between two consenting adults of the same gender. The Supreme Court on April 14 decided to hear the matter with a constitution bench from April 18. 


What Happened On Day 1 


Maintainability Of Pleas 


The hearing on Tuesday, day 1, began on a serious note with the Centre asking to hear the maintainability of the pleas first.  


According to Bar and Bench, the Centre said it will reexamine whether to participate in the proceedings or not after CJI Chandrachud rebuffed a request by Solicitor General (SG) Tushar Mehta to hear the Central government first on the maintainability of the pleas. 


SG Mehta told the Constitution bench that the issue raised by the Central government as regards the maintainability of the petitions should be heard first. As per the report, he said that he was raising this request since the issue falls within the domain of the parliament. 


SG Mehta: "We have filed an application raising this preliminary objection and if courts can at all enter this area or can only parliament do it? The debate which is to happen creating or conferring on a socio-legal institution.. should it be done by court or parliament." 


CJI: "The tenability of your submission will depend on the canvas of submissions by the petitioners. We have to see the arguments on merits. It will not be lost in our mind and we will hear you at the subsequent stage.. we need a picture in first 15 to 20 minutes. Let us hear petitioners first. We cannot preempt the submissions of petitioners."  


SG Mehta: "My submissions are only to see which forum which should be the only constitutional forum which can adjudicate this issue. While raising this preliminary issue we will not address on merits of the case."  


Senior Advocate Mukul Rohatgi, appearing for petitioners, said that the SG's submissions did not hinge the maintainability of the petitions under Article 32.  


Rohtagi: "I have a right to approach this court. I have a right to be heard. My grievance may be right or wrong, your lordships will decide upon that but we are persons who are of the same sex. We have, according to us, the same rights under the Constitution as the heterosexual group of the society. Your lordships have held that. The only stumbling block on our equal rights was 377. That is now gone. Criminality is now gone. The unnatural part or order of nature is gone from our statute. So therefore our rights are equal." 


Focus Now On Special Marriage Act (SMA), Not Personal Laws 


After a broad submission by Senior Advocate Mukul Rohatgi, the Constitution bench noted that it had understood the canvas of the matter. The bench said it had decided that it could steer clear of personal laws.  


CJI: "Now that we've understood broadly the canvas of the matter, we can at this stage, steer clear of personal law. It may not be necessary for the court to then get into personal law." 


Sr Adv Menaka Guruswamy (For Petitioner): "The Hindu Marriage Act is not an issue necessarily of personal law. It is a statutory law. We will demonstrate that. The origin of the Hindu Marriage Act, the Hindu code, did something that was not permitted in sacramental Hindu Law, which is, inter caste marriages, Sagothra marriages, inheritance..." 


CJI: "There may be some amount of sage wisdom in also going about our tasks in incremental manner. Because otherwise do we then confine ourselves only to Hindu Marriage Act? What about the Parsis, Jews, Muslims- there are a lot of communities. The Constitution itself and the law itself is evolving so the court has to be mindful that we're moving by process of interpretation. Perhaps, going incrementally, cover a canvas for the present, confine yourself to this canvas, and then allow parliament's perception to evolve with time. Because parliament is also responding to the evolution of society. We can't deny the fact that there is undoubtedly the legislative element also involved." 


Guruswamy: "Bank account, life insurance, medical insurance...I cannot buy SCBA medical insurance. This is the reality of how rights are exercised. Rights are exercised when you're able to protect your relationships. One facet of that right is the constitutional value of dignity, equality, fraternity. The other facet is the day-to-day business of life. When we look at law in India, most rights flow from this notion of blood relationships, i.e., either being born into a family or being married. That is the problem. If it is short of full marriage, it will mean that subsequently, not just Mr Rohatgi, but Mr Kirpal, me, we will keep coming back to court to litigate individual issues of discrimination. I am not able to nominate my partner for life insurance. These are not theoretical issues. This is our life. This is why we say marriage. Because that is the notion that the legal framework which is premised on common law understands and takes within its fold. So anything short - if it is a civil union, this correspondence will now start with insurance company, with banks, with hospitals, with wills, with estate duties, with anything that is pre requisite to be able to live a life outside a home, including buying that home." 


Justice Kaul: "It may require more visits to court. We can't say. But we cannot say that it'll be possible to work out all possible nuances now. If you say you don't want to touch personal law, then the argument is limited. So can we in SMA, read "person" and leave everything else for a better time?" 


Concept Of Biological Man And Women 


During the hearing, CJI Chandrachud observed, "The notion of biological man and biological woman is not absolute. There is no absolute concept of a man or an absolute concept of a woman at all. Man is not a definition of what your genitals are. It's far more complex. That's the point. So even when the Special Marriage Act says man and woman, the very notion of a man and a notion of a woman is not an absolute based on what genitals you have".  


What Centre Said 


1. Legality Of Same-Sex Marriage Can Be Given By Legislature Only 


Countering the pleas seeking legal validation of same-sex marriage, the Centre in the top court argued that marriage is a socio-legal institution that can be created, recognised, conferred with legal sanctity, and regulated only by the competent legislature by way of an Act under Article 246 of the Constitution of India.  


According to Live Law, the Centre argued that Article 246 states that the courts cannot either create or recognise marriage either by way of a judicial interpretation or striking down or reading down the existing legislative framework for marriages. It contended that the Court recognising the right of same sex marriage would mean "virtual judicial rewriting of an entire branch of law", and cited the order of the Supreme Court in Ashwini Kumar Upadhyay v. Union of India, where the court refrained from framing “gender neutral and religion neutral laws” on the ground that the same fell within the legislative domain. 


It added that the Supreme Court could not issue a mandamus asking the Parliament to frame laws. It also submits that even in the countries where same-sex marriage has been recognised, the vast majority of countries have done so through the legislative route.  


2. Marriage Equality Sought By 'Urban Elitists' 


Centre in its affidavit said that even though India is a country of several divergent religions, castes, sub-castes and schools of religions, the personal laws and customs all recognise marriage solely amongst heterosexual persons.  


Centre: "The institution of marriage is necessarily a social concept and a sanctity to the said institution is attached under the respective governing laws and customs as it is given sanctity by law on the basis of social acceptance. It is submitted that social acceptance and adherence to societal ethos, common values, shared beliefs across religions, in case of recognition of “socio-legal institution of marriage” is not be confused with majoritarianism."  


Centre argued that considering the sanctity attached to the institution of marriage in India, the societal ethos, cherished values in the concept of family, and other such relevant considerations, the affidavit argues that the petitions merely reflect urban elitist views which cannot be compared with the appropriate legislature which reflects the views and voices of "far wider spectrum and expands across the country."  


3. Not Discriminatory To Exclude Same-Sex Marriages From Institution Of Marriage  


The Center submitted in the apex court that it is not discrimination to exclude same-sex marriages from the institution of marriage.  


Centre reasoned: "This is because conventional and universally accepted socio-legal relationships like marriages across all religions, is deeply rooted in the Indian social context and indeed is considered a sacrament in all branches of Hindu law. Even in Islam, though it is a contract, it is a sacred contract and a valid marriage is only between a biological male and biological woman. It is submitted that same is the position across all religions existing in India. It is submitted that this deep-rooted social context is also imbibed in the Special Marriage Act, 1954."  


4. Marriage Not Confined To Private Sphere  


In furthering its argument, the Centre submitted that marriage has never been confined to the private sphere.  


Centre: "The regulation of marriage is very much an issue of acceptance by the society and as such ought to be debated only by the competent legislature, being a body, which is the repository of democratic representation and reflects the will of the people. It is submitted that this rationale is the very basis for state recognition of a marriage across jurisdictions. It is submitted that marriage, thus becomes the condition precedent for the State’s very existence. reading of the impugned laws makes clear that the legislative intent was to recognise marriage as being the union of one man and one woman only..."  


Top Quotes From Petitioners' Side



  • I am not perceived as a criminal but I am still perceived as a person who is not as good, unworthy of standing shoulder to shoulder in public arena.


 



  • The court held that denying right to express sexual orientation to a LGBTQI person it is denying right to citizenship... here also is same.. it is like ok 377 gone but you remain in your closet... and don't come out.. privacy and dignity goes hand in hand ..dignity is life lived to its fullest."


 



  • This argument cannot be raised to leave it to parliament, because your lordships are the protector of fundamental rights. No mandamus lies to the parliament. In Navtej judgment it was said that full media publicity should be given to the verdict but nothing happened. This is disdain of the direction of this court.


 



  • In the Indian society, every parent wants their child to be settled. One of the aspects of settlement is not only to choose your education and vocation but also marriage, family…So we must have it too. I request this court to grant it to us. 


 



  • LGBTQ community possess the same human right as a heterosexual person and thus they have a right to marry and cannot be said to be left alone.. thus we request this court to grant us this relief.


 



  • When Hindu window remarriage was allowed even then society did not accept it.. sometimes parliament acts with less alacrity or more alacrity.. here we have moved ahead... the only stumbling  was 377 and then the mind set.. 377 is gone and rest all that is being argued here is the mindset and that is why the other side has called this an urban elitist concept.


 



  • I was amazed to hear that we are not equals and we need to be equal to stigmatised lot and that is why court should step in and that is why even after 377 judgment we are here.. that is why a state is telling us here that we are not equals. It is being said how are we equal. Well we became equal in 1950s. please see the preamble. Article 14, 15, 19, 21 flow or are adjuncts of the preamble...


 


Reactions On Day 1 Hearing Outcomes 


Referring to CJI’s comment on the concept of biological man and woman, BJP leader Kapil Mishra tweeted, “This comment by honourable CJI will not remain limited to same sex marriage if it goes into the final judgement then it will have consequences on women’s reservation , women’s sports and on various women empowerment initiatives Is this within the mandate of honourable…” 


Filmmaker Vivek Agnihotri said, “NO. Same sex marriage is not an ‘urban elitist’ concept. It’s a human need. Maybe some sarkari elites drafted it who have never travelled in small towns & villages. Or Mumbai locals. First, same sex marriage is not a concept. It’s a need. It’s a right. And in a progressive,…”