Centre to constitute committee to explore administrative steps to address concerns of same-sex couples

The committee headed by the Cabinet secretary will address the concents, without going into the issue of legalising their marriage.

BySouth First Desk

Published May 03, 2023 | 4:19 PMUpdatedMay 03, 2023 | 4:22 PM

Supreme Court hearing on same-sex marriage.

The Centre is set to constitute a committee headed by the Cabinet secretary to explore administrative steps for addressing the concerns of same-sex couples, without going into the issue of legalising their marriage.

Solicitor General Tushar Mehta, appearing for the Centre, told a five-judge Constitution bench of the Supreme Court headed by Chief Justice DY Chandrachud, which is hearing a batch of pleas seeking legal validation of same-sex marriage, that the government is positive about the suggestion for exploring administrative steps in this regard.

He told the bench, which also comprised justices SK Kaul, SR Bhat, Hima Kohli and PS Narasimha, that this will need coordination between more than one ministry.

Related: Law students criticise BCI resolution on same-sex marriages

‘Can give suggestions’

On the seventh day of the hearing in the matter, Mehta said the petitioners can give their suggestions on the issue of exploring what administrative steps can be taken in this regard.

While hearing the matter on 27 April, the apex court had asked the Centre whether social welfare benefits can be granted to same-sex couples without going into legalising their marriage.

The court had posed the question after observing that the Centre’s acceptance of the right to the cohabitation of same-sex partners as a fundamental right cast a “corresponding duty” on it to recognise its social consequences.

The Supreme Court, on 18 April, made it clear that it will not go into the personal laws governing marriages while deciding the pleas seeking legal validation for same-sex marriages and asked lawyers to advance arguments on the Special Marriage Act.

On being pointed out the difficulties and ramifications for the Hindu Marriage Act and personal laws of various religious groups if the apex court were to hold same-sex marriages valid, the bench said, “Then we can keep the personal laws out of the equation and all of you (lawyers) can address us on the Special Marriage Act (a religion-neutral marriage law).”

The Special Marriage Act, 1954, is a law that provides a legal framework for the marriage of people belonging to different religions or castes. It governs a civil marriage where the state sanctions the marriage rather than the religion.

Solicitor General Tushar Mehta, appearing for the Centre, referred to the laws on transgenders and said there are several rights such as the right to choose partners, privacy rights, right to choose sexual orientation, and any discrimination is criminally prosecutable.

Same-sex marriages in India: Trans-formations, intimacies, and public morality

‘Acceptance has to come from society’

“However, the conferment of the socio-legal status of marriage cannot be done through judicial decisions. It cannot even be done by the legislature. The acceptance has to come from within the society,” the top government law officer said.

He said the problem will arise when a person, who is a Hindu, wants to avail the right to marry within the same sex while remaining a Hindu.

“Hindus and Muslims and other communities will be affected and that is why the states should be heard,” the law officer said.

“We are not going into the personal laws and now you want us to get into it. Why? How can you ask us to decide it? We cannot be compelled to hear everything,” the bench said.

Then this will amount to “short-circuiting” the issue and the Centre’s stand is not to hear it all, Mehta said, to which the CJI responded: “We are taking a middle course. We don’t have to decide everything to decide something.”

Mehta, however, said there were several laws which the court would be making redundant inadvertently if it chose to give legal backing to same-sex marriages.

Related: Parents of LGBTQIA+ children write to CJI for ‘marriage equality’

‘All states and UTs be made a party’

The Centre, on 19 April, urged the Supreme Court that all states and Union Territories (UTs) be made parties to the proceedings on the pleas seeking legal validation for same-sex marriages.

In an affidavit filed in the apex court, the Centre has said it issued a letter on 18 April to all the states inviting comments and views on the “seminal issue” raised in the pleas.

“It is, therefore, humbly requested that all states and Union Territories be made a party to the present proceedings and their respective stance be taken on record and in the alternative, allow the Union of India, to finish the consultative process with the states, obtains their views/apprehensions, compile the same and place it on record before this court, and only thereafter adjudicate on the present issue,” the affidavit said.

“It is submitted that Union of India, has issued a letter dated 18 April, 2023 to all states inviting comments and views on the seminal issue raised in the present batch of the petition,” it said.

‘Might take up issues regarding SMA’

The Supreme Court had indicated on 27 April, that it might refer for adjudication by a two-judge bench the challenge to the 30-day prior notice provision in the Special Marriage Act of 1954.

The Special Marriage Act provides a legal framework for the marriage of people belonging to different religions or castes. It governs a civil marriage where the state sanctions the marriage rather than the religion.

Section 5 of the Act says when a marriage is intended to be solemnised under this law, the parties to the marriage shall give notice in writing in the form specified in the second schedule to the marriage officer of the district in which at least one of them has resided for a period of not less than 30 days immediately preceding the date on which such notice is given.

Similarly, Section 7 of the 1954 law deals with the objection to the marriage and says any person may, before the expiration of 30 days from the date on which any such notice has been published, object to the marriage on the ground that it would contravene one or more of the conditions specified in section 4, which pertains to conditions relating to solemnisation of special marriages.

(With PTI inputs)