The Supreme Court on Monday directed that a bunch of petitions filed for recognition of same-sex marriages be referred to a five-judge Constitution Bench of the court. Hearing on this issue will begin on April 18.
The Government had earlier insisted that it is for the Parliament to decide on this issue because the ramifications of the outcome will impact society greatly and will chart the course of ‘how our society develops henceforth’.
A bench comprising CJI DY Chandrachud, and justices PS Narsimha and JB Pardiwala invoked the Apex court’s powers under article 145(3) to directly refer the matter to a five-judge Constitutional Bench citing that the petitions filed for recognition of marriage between people of the same sex raise important constitutional questions. The petitioners were represented by a battery of lawyers that included Senior Advocates AM Singhvi, NK Kaul, and Menaka Guruswamy.
What is the argument of the petitioners?
In the historical Navtej Johar case, the SC had decriminalized sex between persons of the same gender. The argument now is that a legal recognition of same-sex marriage is actually a corollary of the earlier judgment of SC. Abhishek Manu Singhvi, who appeared for some of the petitioners, said it is about “the right to love that the SC explained in its judgment decriminalizing same-sex relations is the right that makes us human”. He further said that “the consequential issues which follow from the decriminalization of Section 377 is that “the right to marry cannot be withheld from a class of persons solely on the basis of their sex, sexual orientation or gender identity”.
Senior Advocate NK Kaul who was appearing for some petitioners stated that the Special Marriage Act speaks about marriage between any two persons. He further said that in the Navtej Singh Johar verdict, the SC “categorically said that the right to life includes dignity and choice of family, marriage, procreation, and sexual orientation and it inheres in every individual including the LGBTQ community”.
He further said “If we holistically look at all these judgments, the rights that your lordships have recognized of same-sex couples and the community, are far beyond a narrow pedantic interpretation sought to be given to the Special Marriages Act by saying that in one paragraph, male and female are used”
Senior Advocate KV Viswanathan argued that the petitions directly involve Articles 19(a) and 21 of the Constitution. He added “The right to choose a partner and have the status of marriage is actually a right of expression, right to dignity and self-respect which are traceable to Article 21. These rights will have to be recognized and statutes suitably tailored to give them this recognition because these have other implications like inheritance, family pension, etc,”
Senior Advocate Menaka Guruswamy, appearing for the petitioners, said “the legislative intent of the Hindu Marriage Act requires that same-sex marriage be recognized because Section 5 of the Act speaks of marriage between two Hindus”. She went on to say that “when Ambedkar presented this, the objections he received on inter-caste marriage, widow remarriage etc. were similar to what the Solicitor General is saying now”.
What is the Government’s argument?
The Solicitor General while representing the Centre said that this issue involves intricacies that must be debated in the Parliament. He said, “When the question of granting recognition, legal sanction to a relationship is concerned, that is essentially a function of the legislature, and for more than one reason”.
He went on to add that “Parliament will have to debate and take a call whether in view of the societal ethos and several other factors which go into the lawmaking, whether we would like this institution to be recognized”. Solicitor General Tushar Mehta also brought to the Court’s attention the fact that provisions that exist in various laws dealing with marriage specifically relate to only biological men and women and that the laws would become otiose if same-sex marriage is legalized.
It is to be noted that the government is not opposed to a consensual relationship between people of the same gender which is now decriminalised after the verdict in the Navtej Johar case. The Government wants a detailed debate about the issue in the Parliament which it believes to be the right forum to debate issues involving society and its development.
It must be added further that the government recognizes the right of two people of the same gender to have consensual sex, but it does not recognize their marriage alliance. There is a difference between the non-recognition of something and considering it unlawful.
The government doesn’t consider same-sex marriages as a violation of any law or a crime, but there are no provisions in the statute book that recognize the marriage alliance between two persons of the same gender. The government is of the view that the matter in question has deep societal issues embedded into it and therefore it must not be hastened through a judicial bypass of the Parliament.
The Parliament is the forum that represents the voice of the people of India, any decision that involves how the society wants to move forward must be decided by the people through their representatives in Parliament. The Judiciary is not a representative institution. Judged are selected not elected. These are some finer issues that call for debate and discussion.
Queer Hindu Alliance, an organization that advocates for the rights of the LGBTQ+ community expressed its disappointment at the decision of the government to oppose the petition for legal recognition of same-sex marriages.
#QueerHinduAlliance’s response to Indian Central Govt opposing plea seeking recognition of same sex marriage before the the Supreme Court of India. #MarriageEquality #QueerHindu pic.twitter.com/cOsA2yfjG9
— Queer Hindu Alliance (@QueerHA) March 12, 2023
What did the SC observe?
The SC while hearing the arguments of both sides said “Having due regard to the broader context of the petitions, and the interrelationship between the statutory regime and constitutional rights, we are of the considered view that it will be appropriate if the issues raised are resolved by a Constitution Bench of five judges of this court having due regard to the provisions of Article 145(3) of the Constitution.
The Court is of the view that the SC should be the forum to resolve this issue, the government is opposed to this as clearly visible in the arguments of Solicitor General Tushar Mehta.
As pointed out by the SG, the Special Marriages Act mentions the age of males and females as 21 and 18 respectively, this presupposes that a marriage alliance can take place only between a man and a woman. So the Special Marriage Act will require an amendment too.
