The apex court terming the issue as 'complex' asked the lawyers to advance their arguments based on the Special Marriage Act.
Published Apr 18, 2023 | 5:32 PM ⚊ Updated Apr 18, 2023 | 5:32 PM
The SC was hearing a batch of pleas seeking legal validation for same-sex marriage. (Commons)
The Supreme Court on Tuesday, 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.
A five-judge Constitution Bench headed by Chief Justice DY Chandrachud termed the issue involving the pleas “complex” and said the very notion of a man and a woman, as referred to in the Special Marriage Act, is not “an absolute based on genitals”.
“It is not the question of what your genitals are. It is far more complex, that’s the point. So, even when the Special Marriage Act says man and woman, the very notion of a man and a woman is not an absolute based on genitals,” said the bench, which also comprised justices Justices SK Kaul, SR Bhat, Hima Kohli, and PS Narasimha.
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 right, right to choose sexual orientation, and any discrimination is criminally prosecutable.
“However, the conferment of 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 will be making redundant inadvertently if it chose to give legal backing to same-sex marriages.
The law officer gave the example of the Code of Criminal Procedure (CrPC) and said a woman cannot be called for examination after a certain time and there could be a situation where a man says that though he has the genitals of a male, he is not a man.
“There is always change in the society and it begins from somewhere,” he said.
The bench said though 10 petitioners wanted it to be dealt with on a broader aspect “we are restricting it and we are not going into personal laws, etc”.
The law officer contended the bench was saying it will not go into the personal laws but the earlier judgements opened this window and so again this would open another window later.
“But we cannot bind our future generations long after we are gone and turned to dust,” the bench observed.
The law officer said the court should decide first whether it can go into this question at all, or it should be essentially for Parliament to deal with it.
Senior advocate Kapil Sibal, appearing for Jamiat-Ulama-i-Hind, said the court should either hear the issue in its entirety or not hear it at all, as a piecemeal approach will cause more harm than good to the group seeking legal validation for same-sex marriages.
“I am a firm believer in the autonomy of an individual… we need to celebrate the union of two people…. now, if marriage is allowed and it breaks, then the question will be who will take care of the child. Who will be the father… who will be the mother…,” he said.
Giving some examples of other nations, Sibal said they reformed all other laws and that he was all for same-sex marriage but not in this fashion.
“If this is not done as a whole, then let it not be done at all,” he said.
Senior advocate Mukul Rohatgi, appearing for one of the petitioners, said if rights have to be identical “then I must get the recognition of my union the same way as the recognition of union of two other heterosexuals”.
“And since it is based on an implementation of my fundamental rights, I can come to the court and the court need not wait for the legislature. There may not be a mandamus to the legislature. Legislature can or cannot do,” he said, adding, “If this court has said something, the state has to respect it and once state respects it, stigma will go.”
Rohagti underlined that law cannot remain static and changes with time.
The bench said, “We have to exercise our interpretative power in an incremental manner, and laws are evolving. So we have to be mindful that the court will do it in the way of interpretation and going incrementally we can cover a canvas for the present… confine yourself (lawyers for the petitioners) to the incremental canvas and then allow Parliament to respond to the evolution of the society. We cannot deny the fact that Parliament is indeed relevant here.”
“For the time being can we not step into personal laws at all and restrict (ourselves) to Special Marriage Act by giving it a gender-neutral interpretation and evolving a civil union concept. From the Navtej Johar (decriminalisation of consensual gay sex) judgement till now there has been an acceptance of same sex relationships in universities… and in this evolving consensus… we know about our limitations,” the bench said.
One of the senior lawyers, Menaka Guruswamy, referred to the difficulties being faced by the LGBTQIA+ (lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual, and ally) community in opening bank accounts and buying life insurance and alleged they were being denied these rights.
“I cannot buy SCBA insurance for my family even though I am a SCBA member… the rights are protected when you protect your relationships,” she said.
Earlier in the day, the Centre insisted its preliminary objection on whether the court can at all go into this question, or it is for Parliament to go into it, be heard first.
The apex court had on 13 March referred the pleas to a five-judge Constitution Bench for adjudication, saying it is a “very seminal issue”.
The hearing and the outcome will have significant ramifications for the country where common people and political parties hold divergent views on the subject.
The apex court had on 25 November last year sought the Centre’s response to separate pleas moved by two gay couples seeking enforcement of their right to marry and a direction to the authorities concerned to register their marriages under the Special Marriage Act.
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