Same-sex marriage: SC tells youth it can only go by the Constitutional mandate

The Supreme Court observed on Day 7 of the hearing on legal recognition of same-sex marriage that even the Solicitor General accepted that people have a right to cohabit and that right is an accepted social reality. The apex court also pointed out that as a Constitutional court, it can only go by the Constitutional mandate and not by what young people want. The court will hear the case again on May 9, 2023.

The Supreme Court bench—comprising D.Y. Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli and Justice P.S. Narasimha—is hearing a batch of 20 petitions arguing for Constitutional recognition of same-sex marriage. The Centre has opposed it on the grounds that it is an urban elitist concept and only Parliament should make laws.

Petitioners have challenged these provisions as violative of the fundamental rights to privacy and argued that the notice exposed couples who enter into non-traditional marriages to threats and violence from families and vigilante groups. The union government is, however, against granting same-sex couples the legal recognition of their relationships as 'marriage' as they have been demanding.

Senior advocate Menaka Guruswamy pleaded that several young people in the country wanted marriage. "I don't say this as an elite lawyer. I say this as someone having met these young people. Do not let them experience what we have experienced," said Guruswamy.

Halting her midway, Justice Chandrachud pointed out that courts could not go by popular morality and the Supreme Court could only go by the Constitutional mandate.

"There is a problem with this line of argument. I understand the feelings out of which this argument has come; but on the Constitutional level, there's a problem. If we go by what young people feel, as a Constitutional court, then we will be subject to volumes of what other people feel," said Chandrachud.

Adding to the CJI’s point, Justice Bhat said that everyone was aware of the history. "You are circumventing all that. Of course there are a lot of feelings in this, but if you do gain something out of this, that's a big positive. If you're likely to get it, just sit back and think what you're gaining. And then if you still want that declaration, we'll have to examine," said Bhat.

Senior advocate Saurabh Kirpal added that there was consensus among the community that they wanted to get married, as no one wanted to be treated as second-hand citizens.

Appearing for Madhya Pradesh, senior advocate Rakesh Dwivedi argued that the demand of same-sex couples that their marriages be treated at par with heterosexual marriages is not a matter of rights. "Is there a fundamental right to marry? Is there [a] fundamental right to equation/ equality in [the] matter of marriage with heterosexual individuals,” asked Dwivedi.

He underscored that changes cannot be made to the Special Marriage Act. The word 'spouse' could be flexible, but in the context of the Act, it meant only husband or wife, he reiterated.

When he attempted to say that the dignity of heterosexual marriages would be affected because the relationship between a husband and wife was meaningful since antiquity, the CJI countered by asking how the dignity of heterosexuals would be affected by giving legal recognition to same-sex couples.

“Do you mean to say, and we're just testing the argument here, that the dignity of the relationship between a heterosexual husband and wife would be affected by granting recognition to a same-sex couple?” asked Chandrachud. On being questioned, Dwivedi backtracked and Chandrachud pointed out that it wasn’t his strongest point.

Sticking to his line of argument, Dwivedi said that the dignity of marriage would be undiminished because heterosexual couples have to use the term 'spouse' in front of the marriage officer. “While claiming dignity, you should not inflict indignity, whether traditionally, culturally, historically, socially. These are valuable things... They may not have meaning to some people," he added.

When Dwivedi said that it was important to ensure that society was prepared to accept such changes, Chandrachud pointed out that they were in the Supreme Court, which operated under the Constitution, which has an enforceable chapter on fundamental rights.

"But fundamental rights don't operate in [a] vacuum. They operate in the context of a given society," said Justice Dwivedi, who went on to add that dignity had nothing to do with marriage and the conversation here was only about social acceptance.

However, CJI Chandrachud underlined that the existence of same-sex couples is not something which was imported from some other place. “It's as much a part of our society as anything else,” he added.

Earlier in the day, the union government informed the Supreme Court that it would be willing to constitute a committee headed by a cabinet secretary to examine issues faced by same-sex couples, without legal recognition of their relationship as a "marriage".

Solicitor General Tushar Mehta stated that he has instructions from the union government that since the issue concerned the rights of certain humans, "something could be done administratively". He added that the lawyers appearing for the petitioners could give suggestions and convey the problems they were facing.

“The government is positive. What we have decided is that this would need coordination between more than a single ministry," said Mehta. "So, therefore, a committee headed by no less than the cabinet secretary will be constituted. My friends can give me the suggestions or the problems which they're facing which the committee will go into and will try and see that so far as legally permissible, they are addressed,” said Mehta.