Same-sex marriage: SC limits case to recognition of union within Special Marriage Act

The Supreme Court five-judge Constitution bench began hearing a case on legal recognition of same-sex marriages on Tuesday (April 18) with the government questioning the Court’s right to hear the case. The court decided to limit the scope of the case to develop the notion of a civil union which finds recognition within the Special Marriage Act.

In a heated argument, Solicitor General (SG) Tushar Mehta insisted that Chief Justice of India DY Chandrachud should first hear the maintainability of the 20 petitions before the Supreme Court seeking recognition of same-sex marriage in India. Mehta insisted that it was the prerogative of Parliament to hear these cases.

“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 should be done by Parliament. My submissions are only to see which forum can adjudicate this issue. While raising this preliminary issue we will not address the merits of the case,” said Mehta. He wanted the petitioners to first reply to the government’s submissions instead.

The Central government has consistently opposed the pleas and gone so far as to state that same-sex marriage is an issue of urban elites and not that of rural India. The government stated in its petition the Centre has argued that marriage is a socio-legal institution which can be created, recognised, conferred with legal sanctity, and regulated only by Parliament under Article 246 of the Constitution.

The bench comprising DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha rejected Mehta’s contention. Setting aside Mehta’s arguments, Justice Chandrachud said the bench would hear the arguments of the petitioners.

“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. Let us hear petitioners first. We cannot pre-empt the submissions of petitioners," said the CJI.

When Mehta refused to listen to the CJI, Chandrachud underscored that he was in charge and he would decide what would be heard in court. “I'm sorry Mr Solicitor, we are in charge. We'll hear you later,” retorted Chandrachud. A peeved Mehta then responded that he would require time to consider to what extent government would want to participate.

While hearing the petitioners, the bench decided that it would not touch the Hindu Marriage Act or any personal laws and instead focus on the maintainability of including same-sex unions under the Special Marriage Act.

Arguing for the petitioners, senior advocate Mukul Rohatgi said that people are in same-sex relations have the same rights under the Constitution as the heterosexual group of people. The court had removed the Section 377, which was a stumbling block on our equal rights.

“Criminality is now gone. The unnatural part or order of nature is gone from our statute. So therefore our rights are equal. If our rights are identical as held by the State, then we want to enjoy the full extent of our rights under Articles 14, 15, 19, and 21. We want privacy in our homes and not face stigma in public places. So we desire same institution between two people as is available to others- the concept of marriage and family. Because marriage and family is respected in our society,” asserted Rohatgi.

He pointed out that they want a declaration that they had a right to marry, and that right would be recognised by the State and could be registered under the Special Marriage Act (SMA). A marriage under the Special Marriage Act, 1954, uses the term ‘spouse’ within its definition. Section 4 of the SMA states that at the time of marriage, “neither party has a spouse living”.

“I want to say that your lordships may broadly read "spouse" in place of "man and woman" or "husband and wife. Constitution is a living document. The preamble says "equality, fraternity",” added Rohatgi.

Chandrachud wanted to know if Rohatgi would go into the broader issue of personal laws, to which he responded in the negative.

This was reiterated by senior advocate Abhishek Manu Singhvi too. He said that they were not arguing personal laws at all and wanted the court to interpret the SMA. “We also want the notice section in the SMA to be struck down,” said Singhvi.

Explaining the need for recognition, advocate Menaka Guruswamy said a marriage was not only a question of dignity. “It is also a bouquet of rights that LGBTQ people are being denied post the Navtej Johar case. 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. I need to be able to get a bank account, life insurance and medical insurance for my partner,” added Guruswamy.

In India, explained Guruswamy, most rights flow from this notion of blood relationships - 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,” highlighted Guruswamy.

When the Solicitor General realised that the Court would not hear personal laws, he intervened to state that such an interpretation would “nececessarily affect personal laws” as both Hindus and Muslims would get affected. Justice Kaul then reiterated that they would not get into the ambit of personal laws.

“We've said we don't want to get into the wider question. We're only deciding a issue today. We can't be compelled to hear everything,” said Justice Kaul, just before winding up the hearing for lunch break.