'By decriminalising homosexuality, one can contemplate same-sex people would be in stable marriage', SC

The Supreme Court on Thursday observed that looking at India, constitutionally and socially, "we have already reached the intermediate stage that by decriminalising homosexuality, one can contemplate that people who belong to the same sex would be in stable marriage-like relationships."

A five-judge headed by Chief Justice D.Y. Chandrachud observed that in the last 69 years, the law has really evolved.

"When you decriminalise homosexuality, you also realise that these are not one-off relationships, these are also stable relationships...by decriminalising homosexuality, we have not just recognised relationships between consenting adults of same gender...we have also recognised implicitly, therefore, the fact that people who are of same sex would be in stable relationships," said the Chief Justice.

The bench - comprising justices S. K. Kaul, S. Ravindra Bhat, Hima Kohli, and P. S. Narasimha - said that the object of the law in 1954 (Special Marriage Act), was to bring in its fold people who would be governed by a matrimonial relationship apart from their personal laws. The bench told senior advocate A. M. Singhvi, representing some of the petitioners seeking legal sanction for same-sex marriages, that the law is surely capable of broadly reading, "according to you to take into account stable relationship of same sex as well."

Singhvi said, "Let me put it very bluntly. When you enacted the law, in the debate in Parliament, you may not have homosexuals in your mind. You may not have considered them...". The CJI replied, "That makes no difference..."

The bench added that "your principle premise is that when the legislation was enacted in 1954, the object of the legislation was to provide a form of matrimony for people who are not falling back on their personal laws."

The Chief Justice added that from the perspective of institutional capacity, "we have to ask ourselves whether we would be doing something which is fundamentally contrary to the scheme of the statute... or re-writing the entirety of the statute... the court will be making the policy choices, which is for the legislature to make."

Justice Chandrachud said, "So long as we do not straddle that line which divides policy from the judicial process, you're still within the fold of..."

The Chief Justice further added that looking at India, constitutionally and socially as well, "we've already reached the intermediate stage. The intermediate stage postulates that by decriminalising homosexuality...very act of decriminalising homosexuality does contemplate that therefore, people who belong to the same sex would be in stable marriage like relationships...the moment we said it is no longer an offence under Section 377, therefore, we necessarily contemplate that you could have a stable marriage-like relationship between two persons."

The bench added that this is not a chance encounter but something more than not just a physical relationship but something of a more stable emotional relationship, which now is an incident of constitutional interpretation. It added, "Once, we have crossed that bridge then the next question is whether our statute can
recognize..."

The bench will continue to hear the matter at 2 p.m.

The top court is hearing a batch of petitions challenging certain provisions of the Hindu Marriage Act, Foreign Marriage Act and the Special Marriage Act and other marriage laws, as unconstitutional on the ground that they deny same sex couples the right to marry or alternatively to read these provisions broadly so as to include same sex marriage.