By Vikram Kilpady
Almost five years after the Navtej Singh Johar vs Union of India verdict of the Supreme Court decriminalizing consensual same-sex relationships in September 2018, the next step for homosexual couples seems to be heading for the final countdown over the legal recognition of same-sex marriages.
The Supreme Court recently transferred a batch of 15 petitions to a five-judge Constitution bench to hear the case from April 18. The petitions range from seeking changes to provisions of the Special Marriage Act, the Hindu Marriage Act and the Foreign Marriage Act to enable same-sex couples get over the gender barrier stipulated in the laws. Some petitions also seek changes to the Citizenship Act to allow foreign partners in a same-sex marriage to be recognised as spouses for availing of Overseas Citizenship of India. Some petitions have prayed for the right to marry a person of one’s choice to be extended to LGBTQIA+ persons as well.
Chief Justice of India DY Chandrachud referred the petitions to the Constitution bench under Article 145 (3) of the Constitution, which decrees that a bench of minimum five judges need to sit to decide a case involving a “substantial question of law as to the interpretation of the Constitution”.
The bench, which also comprised Justice PS Narasimha and Justice JB Pardiwala, noted the petitioners have asserted broader entitlements, including the right to life, the right to dignity in the Constitution, the Preamble and issues pertaining to Articles 14, 19 and 21.
The reference to the Constitution bench also meets another demand for live screening of proceedings of hearings on the same-sex marriage recognition issue, since Constitution bench proceedings are already being live telecast, a point noted by Senior Advocate Neeraj Kishan Kaul, who appeared for one of the petitioners.
With the petitions pushing for such a large scale overhaul of laws, the Union of India argued that such changes should come via Parliament and not the courts. In its counter-affidavit, the Union maintained that a marriage can only be between a biological man and a biological woman. “It is submitted that codified and uncodified personal laws take care of all branches of every religion like Mitakshara, Dayabhaga etc in Hindus and similar differences in other religions. Depending upon the personal laws applicable, the nature of marriage as an institution is different. Amongst Hindus, it is a sacrament, a holy union for performance of reciprocal duties between a man and a woman. In Muslims, it is a contract but again is envisaged only between a biological man and a biological woman. It will, therefore, not be permissible to pray for a writ of this Hon’ble Court to change the entire legislative policy of the country deeply embedded in religious and societal norms.”
Referring to the Navtej Singh Johar judgment, the Union argued that despite decriminalization of Section 377 IPC, the petitioners cannot claim a fundamental right for same-sex marriage to be recognized. “While it is certainly true that all citizens have a right to association under Article 19, there is no concomitant right that such associations must necessarily be granted legal recognition by the State. Nor can the right to life and liberty under Article 21 be read to include within it any implicit approval of same-sex marriage.”
It said the same has been clarified by the Supreme Court order in the same judgment’s Para 167: “…When we say union, we do not mean the union of marriage, though marriage is a union. As a concept, union also means companionship in every sense of the word, be it physical, mental, sexual or emotional.” The petitioners’ counsels piped in to say that reading was incorrect.
Solicitor General (SG) Tushar Mehta underlined the Union is not contesting the right to love and the right to express which had already been upheld in the Navtej Johar judgment nor does it seek to interfere with it. He again submitted that the Court then had said expressly and carefully that the right to love need not mean the right to marry.
Apart from the “a sacrament, a holy union, a sanskar” angle, the centre’s affidavit said: “Parties entering into marriage create an institution having its own public significance as it is a social institution from which several rights and liabilities flow. Seeking declaration for solemnisation/registration of marriage has more ramifications than simple legal recognition. Family issues are far beyond mere recognition and registration of marriage between persons belonging to the same gender.”
Appearing for one of the petitioners, Senior Advocate Abhishek Manu Singhvi said the laws have to be read in such a way that terms such as man, woman are done away with. He added the right to marry should not be denied to a group of persons purely based on their sexual orientation.
The SG said Parliament will have to see the psychology of a child who has not been reared by a father and a mother and will have to debate and take a call in view of societal, cultural ethos. CJI Chandrachud then clarified that the adopted children of a lesbian or a gay couple need not necessarily be lesbian or gay.
Imploring the Supreme Court, the SG said the Court will be taking upon itself a grave responsibility which will decide how society will develop in the future and its ramifications.
Predictably, the Rashtriya Swayamsevak Sangh has supported the Union’s stance. Speaking to the media after the RSS Akhil Bharatiya Pratinidhi Sabha, its general secretary Dattatreya Hosabale said: “Marriage is supposed to be between two opposite genders. It’s not a contract or an instrument of enjoyment.”
Hosabale said marriage should only be between a man and woman, but added that any two people are welcome to stay together. On the cultural aspect, he said: “In the Hindu way of life, marriage is part of our culture, and it has been going on for thousands of years. Two individuals live together, not for themselves, but to start a family. It is for the betterment of society, and for the betterment of their own region. It is not for personal, physical or sexual enjoyment.”
Data from the Human Rights Campaign (HRC) Foundation, which tracks developments in the legal recognition of same-sex marriages around the world, shows 32 countries have already legalized same-sex marriages. These are Argentina, Australia, Austria, Belgium, Brazil, Canada, Chile, Colombia, Costa Rica, Denmark, Ecuador, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Mexico, the Netherlands, New Zealand, Norway, Portugal, Slovenia, South Africa, Spain, Sweden, Switzerland, Taiwan, the United Kingdom, the United States of America and Uruguay (see map). Of these, Taiwan is the only Asian country where a same-sex union is legally recognized.
Switzerland, Ireland and Australia legalized same-sex marriages by legislation after country-wide referendums. Ten countries legalized same-sex marriages after court verdicts, these include the United States of America, Austria, Colombia, Ecuador, Mexico, Costa Rica, South Africa and Taiwan. Slovenia passed legislation legally recognizing same-sex marriages after a court order. Further, South Africa and Taiwan passed legislations after courts in their respective countries mandated the legislature to pass laws within a deadline, says the HRC website.
The US Supreme Court in June 2015 legalized same-sex marriage all over the country barring American Samoa and other sovereign tribal nations. The ruling invalidated constitutions in 29 states that ban same-sex marriage and statutes in 31 states barring same-sex marriage. Nevada became the first state to repeal its ban on same-sex marriages, but five years later in 2020. Further, only 18 of the 50 US states have legalized same-sex marriages hence, the notable exception among them being California.
In its affidavit before the Supreme Court of India, the Union also sought to downplay the reliance on judgments of US Courts referred to in the petitions by quoting two Supreme Court judgments of 1965 and 1973 that noted caution before literal application of such verdicts. Though the prospects of a closure look imminent, there are challenges ahead which can skew the debate in the popular imagination at least.
With only the heterosexual blindfold in its defence and the purported effects on society and culture, the Union of India’s thrust in its counter-affidavit has been that granting legal status to same-sex marriages will need revisiting a slew of laws dealing with adoption, divorce, maintenance/alimony, spousal cruelty, adultery, property inheritance and more.
Advocates for marriage equality and a progressive society will have their arguments for modifying the laws around the institution of marriage to make room for same-sex unions. The government’s view has been that it will be dismantling a civilisational and cultural construct.
The Constitution bench, which will hear the case, will be aware of the far-reaching impact its verdict will have. It will be telecast on YouTube. Mark the date and follow the proceedings to find out if modernity will be able to pull off a victory over ancient biases and stigma in the era of individual preferences.
—The writer is Editor, IndiaLegalLive.com and APNLive.com