Plea for Marriage Equality: Constitution Bench Day #10
Plea for Marriage EqualityJudges: D.Y. Chandrachud CJI, S.R. Bhat J, S.K. Kaul J, Hima Kohli J, P.S. Narasimha J
After 10 days of arguments, the SC concluded hearing arguments in the case. The petitioners finished their submissions in response to the Union and other respondent’s arguments.
Yesterday, the Bench heard arguments from ASG Aishwarya Bhati against the legal recognition of marriage for LGBTQIA+ persons under the Special Marriage Act, 1954 (SMA). Sr. Adv. A.M. Singhvi commenced the rejoinder arguments on behalf of the petitioners.
Background
On November 14th, 2022, two same-sex couples filed writ petitions in the Supreme Court seeking legal recognition of same-sex marriages in India. The petitions were centred around the constitutionality of the Special Marriage Act, 1954 (the Act).
The petitioners argued that Section 4(c) of the Act only recognises marriage between ‘male’ and a ‘female’ persons. This discriminates against same-sex and other queer couples by denying them the same matrimonial benefits as heterosexual couples.
According to petitioners, the non-recognition of same-sex marriage violates the rights to equality, freedom of expression and dignity. They claimed that the SC’s judgements in NALSA vs Union of India (2014) and Navtej Singh Johar vs. Union of India (2018) recognised non-binary gender identities and guaranteed equal rights to homosexual persons. However, since no law regulates queer marriages, queer couples are denied the practical benefits that flow out of marriage such as inheritance, insurance, adoption, etc.
On March 12th, 2023, the Union filed a Counter Affidavit opposing same-sex marriages. They claimed that ‘the notion of marriage itself necessarily and inevitably presupposes a union between two persons of the opposite sex’.
On March 13th, 2023, a 3-Judge Bench led by CJI D.Y. Chandrachud referred the case to be heard by a 5-Judge Constitution Bench as it involved constitutional as well as statutory questions of law.
Only Challenging Exclusionary Provisions, Not Entire Special Marriage Act
Earlier in the hearings, the Union argued that a gender neutral reading of the SMA would defeat the purpose of the provisions specifically geared towards the protection of women. Today, Senior Advocates Dr. A.M. Singhvi and Raju Ramachandran clarified that the petitioners were only challenging provisions which excluded LGBTQIA+ persons. The provisions for the protection of women would remain untouched.
Dr. Singhvi emphasised that recognition under a secular marriage law like the SMA would open the door to rights under other secular statutes that use the word ‘spouse’ instead of ‘husband’ and ‘wife’. The application of other laws can be developed on a case-by-case basis.
Declaration from the SC Must Have Distinct Consequences
Sr. Adv. Raju Ramachandran cautioned the Court against solely making a positive declaration recognising marriage equality. The Court cannot make a declaration assuming the Legislature will pick up the baton and enact a law expediently. In past cases where such declarations were made, the Legislature was dealing with issues that had unanimous appeal such as penalising the practice of Triple Talaq and securing data privacy. Meanwhile, the marriage equality case is dealing with an unpopular minority across communities.
CJI Chandrachud informed Mr. Ramachandran that the Court cannot make a declaration based on how Parliament will respond.
Sr. Adv. Saurabh Kirpal picked up where Mr. Ramachandran left off. He argued that any declaration must be accompanied by formal action so that society will recognise married LGBTQIA+ couples. Even if the solution is slightly ‘unworkable’, it is better than nothing. A declaration that queer marriages can be recognised under Section 4 of the SMA would suffice. Other issues with the SMA can be dealt with as they arise. The respondent’s cannot claim unworkability as a defence to a constitutional issue and be use this argument to circumvent fundamental rights.
Advocate Arundhati Katju supplemented these submissions. She argued that a declaration would be binding on Parliament and the rest of the judiciary, leading to an evolution of rights in a similar vein as the NALSA (2016) Judgement. NALSA recognised transgender persons as a backward class which led to the creation of targetted social welfare schemes in multiple states. Similarly, any declaration recognising the right to marry must translate into day-to-day life, ideally through recognition in the SMA.
Government has a Duty to Recognise LGBTQIA+ Marriages
Even outside of what is contained in the SMA, Sr. Adv. K.V. Vishwanathan stated that there existed a fundamental right to marry. Flowing from that, the State has a duty to recognise LGBTQIA+ marriages in a non-discriminatory manner.
Justice Bhat pounced on this argument. He said there were two steps to accepting Mr. Vishwanathan’s argument, not one. Before accepting that the State had a duty to recognise LGBTQIA+ marriages, Mr. Vishwanathan was assuming they already possessed the fundamental right to marry.
Advocate Arundhati Katju later appeared and argued the right to marry could be located in a range of fundamental rights. The first consideration when recognising the right to marry is conferring the status of marriage itself.
LGBTQIA+ Marriages do not Go Against the ‘Grain’ of the Special Marriage Act
Sr. Adv. Jayna Kothari introduced the Parliamentary debates leading up to the enactment of the SMA. At the core of the Act is a shift in understanding the institution of marriage. What was once a sacramental institution is a legal institution under SMA in order to give individuals the freedom of choice and facilitate inter-faith and inter-caste marriages. LGBTQIA+ marriages fall squarely within the SMA’s conception of marriage. All the petitioners are seeking is for the Court to interpret the SMA with an eye towards the purpose behind its enactment.
No Evidence to Suggest LGBTQIA+ Marriages have Adverse Effect on Adoptive Children
Representing the Delhi Commission for the Protection of Child Rights, Senior Advocate Dr. Maneka Guruswamy hacked away at the arguments made by the National Commission for the same. She presented a statement from the Indian Psychiatric Society, which said LGBTQIA+ couples should enjoy the same rights to marriage and adoption as all other citizens. There is no evidence to suggest that their participation would have negative effects.
Dr. Guruswamy also referred to studies authored by the American Psychological Association and similar organisations. These studies canvassed the psychological impact on children in 50 countries where same-sex couples are allowed to adopt. They find that there is no adverse impact and often, the children academically outperform those who have straight parents.
