Parties in Marriage Equality Challenge to Discuss Possible Solutions

In the Marriage Equality hearings on Wednesday, the 5-Judge Bench requested the Union and the Petitioners to meet informally this weekend. The focus will be on what administrative tweaks the Union can make to ensure that non-heterosexual couples may avail the ancillary benefits of marriage. 

Solicitor General Mr. Tushar Mehta, quick to set the expectations from the meeting, clarified that the lawyers on the Union side ‘may not have ready solutions’. The petitioners, though willing to engage in the discussion, were wary that this might derail the case from the focus on the equal right to marry. 

The discussion this weekend may arrive at a tentative list of provisions across social welfare statutes that can be tweaked to recognise rights of cohabiting couples. It may also demarcate issues that can be resolved by the Union, and where the legislature and the Court will have to weigh in. 

Exploring Administrative Changes to Provide the Benefits of Marriage

In the hearing on April 27th, the Bench highlighted that apart from the recognition of marriage, other benefits of marriage such as gratuity, and nominations to provident funds were strewn across various statutory provisions. They asked the Solicitor General what the State can do to facilitate such practical issues. The Court stated that the Government must intervene where they cannot, by tackling the administrative blocks which withhold a sense of security, social welfare and the wider benefits of marriage from LGBTQIA+ persons. The Bench encouraged a statement from the Union on how they plan to facilitate the benefits of marriage. 

Mr. Tushar Mehta responded that the Union understood the ‘human concerns’ of not recognising marriage. The Union was willing to discuss possible solutions other than giving legal recognition to non-heterosexual couples in the form of marriage. He agreed to return to Court with a plan after conferring with relevant Union Ministries. 

Union Considers Forming a Committee to Review Rights of Married Persons

On May 3rd, 2023, the Solicitor General informed the Court that the Union was willing to form a committee. This committee, headed by the Cabinet Secretary, would hear the petitioners’ issues and suggestions and address any administrative concerns to a ‘legally permissible’ extent.

Senior Advocate Dr. Abhishek Manu Singvi welcomed ‘whatever little is given by administrative tweaking’. However, this should not be considered a substitute for the more substantive reliefs the petitioners are seeking. Sr. Adv. Dr. Maneka Guruswamy reiterated that the recognition of marriage would form the basis for availing some basic benefits which only accrue in a marriage. 

The Bench clarified that the rules were designed such that legally recognised marriage formed the sole basis for these benefits. Asking the Union to make administrative tweaks is meant to eliminate the need for legally recognised marriage to avail these rights. Further, they assured the petitioners that exploring these options would not negatively impact the petitioners plea—it would solely focus on the ancillary benefits of marriage rights, while the Court hears the matter further.