Plea for Marriage Equality: Constitution Bench Day #3

Supreme Court Must Ensure the Special Marriage Act Abides by the Constitution

Sr. Adv. A.M. Singvhi opened today’s arguments by referencing Baroness Hale of the House of Lords in Ghaidan v. Godin-Mendoza (2004) which addressed differences in treatment of individuals based on sexual orientation. ‘When there is a particular paradigm that applies to the heterosexual group, it is discriminatory to not apply the same to homosexual groups’, he argued.

Highlighting that there was no justification for discouraging non-traditional families, Dr. Singhvi pointed out that there were no longer any legal or societal differences between the roles of husband and wife. The Special Marriage Act, 1954 (SMA), therefore, must be interpreted in a manner that conforms to human rights standards and the Constitution of India. 

Intention of the Legislature (Parliament in this instance) and the text of the statute are two limbs on which a statute can be interpreted. A third test for interpretation is based on the purpose of the law. ‘Purposive interpretation must be based on the importance of the fundamental rights involved’, he added.

Justice S.R. Bhat stated that while the SMA provides a framework for marriage, the underlying concept itself was dynamic.  CJI Chandrachud questioned if the law had progressed enough to contemplate that binary genders are not necessary to define marriage. Dr. Singhvi responded in the affirmative.

Addressing Dr. Singhvi’s arguments on the interpretation of law, the CJI pointed out that the SC is not bound by the plain text of the Constitution as it is an evolving document. Would the SC then be bound by the plain text of a statute (which is below the Constitution), he questioned. ‘To put it bluntly, is a heterosexual relationship so fundamental to our law and the SMA that we cannot comprehend a same-sex marriage such that it would undo the tapestry of marriage?’. Dr. Singhvi responded with another question, ‘does the underlying thrust of the SMA stop the Bench from recognising Article 14 obligations to treat queer couples on the same pedestal as heterosexual couples?’

Later during the hearing, Senior Advocate Raju Ramachandran pointed out that the language of Section 4 of the SMA (which deals with the solemnisation of marriage) provided a path for the SC to recognise marriage equality. While it provides the minimum marriage age for men and women, it does not expressly state that men and women can only marry the other sex. He acknowledged that Parliament likely did not envision marriage equality while drafting the law, but nevertheless argued that it was capable of accommodating more kinds of marriages. 

Which Minimum Marriagable Age Will Apply to Queer Couples?

On his next leg of arguments, Dr. Singhvi argued that the minimum age for marriage would depend on the gender of whoever is involved in the marriage. In effect, the minimum age for same-sex male couples would be 21 years, while the same would 18 years for same-sex female couples. Transgender persons will have the corresponding age requirement per their professed gender.

Dr. Singhvi reminded the Bench that the petition as challenging only the discriminatory portions of gendered provisions and not every provision. Some provisions like S. 27(1)(a) cannot apply to anybody. ‘You cannot have a system that applies uniformly to everybody, like rape’, stated Dr. Singhvi.

CJI Chandrachud questioned why the law of rape could not apply to homosexual couples. Dr. Singhvi pointed out that the criminal offence of rape has been defined as non-consensual penile vaginal penetration. This definition may not apply to queer couples. However, he pointed out that if the definition was changed to being just non-consensual and penetrative, then the law on rape could apply to queer persons as well. However, marital rape has not been recognised as a crime in India yet as the case is still pending before the SC. 

Requirement of Notice Under the SMA Violates Article 21 and the Right to Privacy

Dr. Singhvi concluded his arguments by addressing the 30-day notice requirement for couples looking to get married under the SMA. Within this period, third parties are allowed to file objections to marriage that is yet to be registered under the SMA within the 30-day period. Dr. Singhvi pointed out that no other Act or personal law requires notice of prior intent to get married.

This invades a couples right to privacy by directing them to declare their intention in public domain and forcing them to invite objections. It vitiates their decisional autonomy, which is the heart of the right to privacy. Justice Narasimha pointed out that this requirement was holdover from a colonial statute and Justice Bhat noted that it was created at a time when women did not have any agency. Dr. Singhvi strongly argued that if the SC chose to strike down this requirement, it should be struck down for all couples regardless of sexual orientation. 

Senior Advocate Raju Ramachandran also addressed the notice period issue in detail. He spoke about the provisions origins as a colonial era tool to allow British people to get married in India. This law, he noted with amusement, was known as the ‘Act for the Better Preventing of Clandestine Marriages, 1753’. He then pointed out the irony of a provision used to prevent the solemnisation of marriages being adopted under the SMA which is mean to enable marriage in a secular manner. 

Mr. Ramachandran also highlighted how the notice period essentially forces a couple to give notice of their exercise of a fundamental right (the right to marry is a facet of the right to life under Article 21). This opens the door to a host of social sanctions, not the least of which would stem from the families of the couples, especially for spouses from marginalised communities, as pointed out by CJI Chandrachud.  

Parental and familial exclusion would also extend to other rights under Article 21 like the right to health. He argued that this could result in an individual being left with no one capable of taking medical decisions on their behalf if necessary. Even with regards to mental health, all individuals have the right to form a family and lead a fulfilling life. 

On the final leg of his arguments, Mr. Ramachandran highlighted the need for a protection protocol. ‘Couples on the run from families need protection of the State through the aegis of this Court. State has a duty to protect fundamental rights.’ He drew a comparison to the SC’s protocol to protect couples from khap panchayats in the Shakti Vahini case (2018). 

Procreation is an Incidental Aspect of Marriage, not an Integral One

Sr. Adv. K.V. Vishwanathan argued that the inability to procreate is not a valid defence to withhold the right to marry. None of the statutes governing marriage prescribe an upper age limit for marriage. People who are beyond the age of reproductive capacity are allowed marry. People who cannot or don’t want to have children as well. Procreation is an incidental part of marriage and helps in developing a human personality.

Further, even if a queer couple adopts a child, there is no evidence to show that queer couples do not provide children the safety, welfare and security they require. CJI Chandrachud brought up the hypothetical of a child in a traditional household who witnesses domestic violence. No surety they will grow up without any negative carryover. ‘At the risk of getting trolled’ CJI Chandrachud wryly hedged, he stated that there are no absolutes.

Mr. Vishwanathan took the argument even further, to its ‘logical conclusion’. If this is accepted, what if Parliament says no need to give life insurance to queer people? Or states that they no longer have the right to vote as they are less concerned with the future of the country? This argument has potentially disastrous consequences. Here, Justice Bhat cautioned Mr. Vishwanathan stating that they must confine themselves to likely outcomes. 

Mr. Vishwanathan Briefly Addresses Submissions on Behalf of Transgender Persons

On the final leg of his arguments, Mr. Vishwanathan addressed the Transgender Persons Protection Act and the NALSA Judegement (2014). ‘NALSA recognised the right to marry between a trans man and a trans woman’. Further, he noted that the recognition of a third gender in the Transgender Persons (Protection of Rights) Act, 2019  confers the rights to vote, marry, own property, etc. 

The Bench will continue hearing the case on Monday (April 24th, 2023)