Same-sex marriage: Can Special Marriage Act be read per Constitutional safeguards against discrimination?

After hearing the petitions seeking legal recognition for same-sex marriage for 10 days, the Supreme Court—which was expected to declare a verdict today—has reserved its judgement.

On the last day of the hearing (before the Court takes its summer break), the Constitution bench listened to arguments from the petitioners stating that allowing same-sex marriage under the Special Marriage Act does not make it unworkable for heterosexuals.

The Supreme Court bench—comprising Chief Justice of India 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 Abhishek Manu Singhvi, who began the arguments on the last day of the hearing, said that the petitioners were not seeking an interpretation of every gendered word in the Special Marriage Act (SMA) in a gender-neutral way. “We are only leaning on those parts of the SMA that require a constitution-compliant reading on grounds of discrimination.”

Singhvi underscored that until the rights of non-heterosexual couples to marry under the Hindu Marriage Act (HMA), 1955, are accommodated by the Court or the legislature, non-heterosexual marriages will not meet the preconditions for the triggering of Section 21A of the HMA. Section 21A of the HMA deals with divorce.

He pointed out to the court that non-heterosexual Hindu couples who marry under the SMA would be excluded from legal succession acts: “They will be governed by the Indian Succession Act, 1925 (ISA) like the non-Hindu couples.”

The petitioners argued against civil unions as they would not be an equal alternative and were not considered a 'marriage'. 'By excluding same-sex couples from civil marriage, the state is declaring that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples. Ultimately, the message is that the relationships same-sex couples have [are] not as important or as significant as 'real' marriage, and that such lesser relationships cannot have the name of marriage,' said Singhvi.

Singhvi also explained that the minimum age for lesbian couples would be 18 and that for gay couples, it would be 21, as required by the Constitution. In the case of those who are genderfluid, it could be 18. For a transgender man, the minimum age would be 21, and for a transgender woman, it would be 18.

Taking the argument further, senior advocate Raju Ramachandran pointed out that lack of recognition would lead to the denial of equal protection under the existing laws. He submitted that in the case of a heterosexual marriage under the SMA, each one of the statutes would stand as they are because of the higher Constitutional mandate under Article 15(3).

Section 3 of Article 15 says that nothing in the article should prevent the government from making any special provisions for women and children.

He highlighted that if the bench wanted to leave it to the legislature to decide on such matters, they should consider that the government has only made laws in cases where the majority of the society agreed with their decisions, such as in cases of triple talaq, the transgender act and data protection.

Ramachandran requested the court to walk the full mile, as it has always said that it was the protector of unpopular citizens. He said he was responding to the arguments of senior advocate Rakesh Dwivedi, who appeared for Madhya Pradesh.

During the hearing, CJI Chandrachud wondered if there was an interpretive space within the SMA. To this, senior advocate K.V. Vishwanathan said the court has a positive obligation to interpret in this instance.

Both senior advocates Anand Grover and Geetha Luthra said they were concerned about the Foreign Marriage Act too, as that shouldn’t be ignored while the focus is on SMA. “Petitioners here have a valid marriage. I have a right to it in terms of being an India[n] citizen and a citizen of India married abroad. When I come to India, I become nothing,” submitted Luthra.

Grover highlighted that the Supreme Court had decided that sexual acts barred under Section 377 were not criminal. "Then the logical thing would be to also agree [to] an association. Apart from Article 11, 19(1)(c) gives the fundamental right to association, which is realised by marriage," said Grover.

"The stigma which British laws attached to [the] LGBTQIA community is persisting today and the failure to allow marriage allows that stigma to continue. The court cannot be a party to that as that would be perpetuating the stigma," he added.

Senior advocate Saurabh Kirpal, whose elevation to the Delhi High Court has been stalled on grounds of his sexuality, stated that the idea was to be an equal citizen in India: "To have same rights as everyone else. A declaration of marriage must be formalised so that it can practically impact [the] lives of any two people. There must be some formal aspect to carry out that larger [C]onstitutional right. Section 4 of [the] SMA gives just that."

He reminded the courtroom that legalising same-sex marriages under SMA need not mean that the Act would become unworkable for heterosexuals. "There are aspects which may become unworkable. But slightly unworkable is better than nothing. And we had nothing so far,” asserted Kirpal.

Agreeing with Kirpal, advocate Karuna Nundy said that Sections 15–18 of the SMA require registration of marriages and these are gender-neutral. This could aid same-sex couples.

Appearing for the Delhi Commission for Protection of Child Rights (DCPCR), which has supported same-sex marriage, senior advocate Menaka Guruswamy said she was responding to the submissions of same-sex parenting and adoption rights of same-sex couples by the National Commission for Protection of Child Rights (NCPCR). NCPCR has stated that it was against adoption rights for same-sex couples.

She pointed out that there was no evidence to indicate that individuals from the LGBTQIA spectrum could not be good parents. "On the contrary, it is discrimination which leads to mental health issues," stressed Guruswamy. Moreover, there are over 50 countries in the world that allow same-sex couples to adopt and that is more than the number of countries that allow same-sex marriage, it was pointed out.

“Studies done in countries [that] allow same-sex couples to adopt all make three points—there is no adverse impact on children; lack of protection has [an] adverse impact on children; and human sexuality develops quite early. The academic results of children raised by same-sex parents from birth [show that they] outperform children raised by heterosexual parents by 0.139 standard deviations on academic tests,” said Guruswamy.

Winding up the arguments, senior advocate Arundhati Katju argued that a declaration would go a long way towards recognising the rights of same-sex couples. "Do not let my humanity be reduced to a single identity. The Court has stated that a person [has] the right to family and procreation, but that stems from the status of being married itself,” said Katju.

Ending with a flourish, Katju requested the court to open the doors and tell everyone where their social values stood, and ensure that they would follow the Constitution.

Previous arguments

Both the Madhya Pradesh and Rajasthan governments said they were opposed to same-sex marriage, but Andhra Pradesh, Assam, Uttar Pradesh, Maharashtra, Manipur and Sikkim requested for more time to study the issue.

The Union government had claimed that people would use the legal recognition given to non-heterosexual marriages to defend incestuous relationships. The Madhya Pradesh government argued that the demand of same-sex couples that their marriages be treated at par with heterosexual marriages is not a matter of rights, and he attempted to say that the dignity of heterosexual marriages would be affected because the relationship between a husband and a wife was meaningful since antiquity.

The apex court had questioned the government as to whether social welfare benefits could be given to same-sex couples without legal recognition of such marriages. It had also pointed out that the Indian Constitution has long been a ‘tradition breaker’.