Plea for Marriage Equality: Constitution Bench Day #4

Sr. Adv. Geeta Luthra: Same-Sex. Marriage is not Against International Law.

Sr. Adv. Geeta Luthra represented a same-sex couple, one of them was Indian and the other Foreign whose marriage is registered and recognised in Texas, USA but not in India. Ms. Luthra argued that this marriage must be recognised in India as well under the Foreign Marriage Act, 1969 (FMA).

She stated that as per the provisions of the FMA, the only instance when a foreign marriage could be denied recognition is when it is against international law. Same-sex marriages are recognised in 34 countries and the petitioner’s marriage is registered in Texas. Therefore, it is not against international law. 

She drew the Bench’s attention to the anomaly created when the marriage is recognised in one country (USA) but is no longer recognised when the couple enters India. She cited examples from Austria and South Africa and the Indian SC’s Judgement in Navtej Singh (2018) to argue that it was discriminatory to not recognise same-sex marriages.

Sr. Adv. Anand Grover: Marriage is a Way of Life

Mr. Grover appeared next representing two couples. One couple is governed by the Special Marriage Act, 1954 (SMA) and the second, governed by the FMA. 

Mr. Grover focused his arguments on the US Courts concept of ‘intimate association’. He cited the US Supreme Court’s judgement in Griswold v Connecticut (1965) to argue that marriage was recognised as an association that provides harmony in a way of life. He went on to cite other cases of the US Supreme Court such as cases Roberts v. United States Jaycees (1984) and Obergefell v. Hodges (2015) to argue that the right to marry was a fundamental right. 

Speaking about trans persons, Mr. Grover argued that it was unacceptable to refer to them in a derogatory way. Ancient Indian scriptures recognised transgendered people in a very respectful manner. It was the British who looked down upon them and we imbibed that mindset from them. 

Mr. Grover went on to argue that if a cis-gender male married  a cis-gender woman, and during my marriage, the man identified as a woman, the law doesn’t say the marriage is invalid. It recognises marriage. Therefore, these unions are already present in our society. 

Lastly, Mr. Grover rebutted the Union’s argument that queer unions were ‘urban’ and ‘elitist’ ideas. He claimed that he had compiled 10 orders of queer persons all of whom were from poor and rural backgrounds.

Sr. Adv. Jayna Kothari: Essential to Recognise Right to Marry And Have a Family 

Sr. Adv. Kothari representing the trans-activist Akkai Padamshali argued next. She focused her arguments on three points:

1. The Right to Marry
2. The Right to Family and 
3. The provisions of the SMA. 

Ms. Kothari argued that trans persons had the right to marry and have families at par with heterosexual couples. She stated that family was not a heterosexual phenomenon. In fact, trans-persons have families but these families are not recognised because their right to marry is not recognised. 

She cited the Universal Declaration of Human Rights, 1948 and the ICCPR, 1966 to argue that the right to marry was a basic fundamental right. Not recognising this right for trans persons amounts to discrimination on the basis of sex under Art. 15 of the Constitution.

Lastly, Ms. Kothari argued that the SMA which only recognised a man and woman’s right to marry was against constitutional values. She proposed that the provisions of the SMA which state ‘man’ and ‘woman’ be replaced with the word ‘persons’. The words ‘ husband’ and ‘wife’ be replaced with the word ‘spouses’ instead.

Sr. Adv. Menaka Guruswamy: We Ask For Workable Interpretation of the SMA

Dr. Guruswamy commenced her arguments by opposing the statements in the Union’s Counter Affidavit. This Union claimed that the SC must not interfere with this matter as it is the power of Parliament. Dr. Guruswamy however, claimed that this argument of the Union was flawed. In India, unlike in Britain, Parliament was constrained by the Constitution. Therefore, to say that the citizens must wait for Parliament to enact laws was not only unknown to the Indian parliamentary form. It also sought to impose a British parliamentary system on us.

CJI Chandrachud was quick to respond to this. He stated that owing to Entry 5 of the Concurrent List of the Constitution, Parliament was inevitably involved in this canvas of petitions. The real question is to examine to what extent the Courts can interfere. Therefore, he clarified that it would be incorrect to state that involving Parliament amounted to imposing a British parliamentary system in India. 

Dr. Guruswamy went on to state that Art. 32 of the Constitution gave citizens the right to approach the SC when fundamental rights were breached. Marriage was a fundamental right. The State breached fundamental rights by not granting LGBTQIA+ couples this right. Therefore, a workable interpretation of the SMA was required. This could be done through a declaration made by the SC. 

CJI Chandrachud and Justice S.R. Bhat were hesitant to accept this argument. They questioned Dr. Guruswamy if interpreting the provisions of the SMA was enough. For instance, Section 21 of the SMA inevitably involves personal laws in matters of succession for instance. 

Dr. Guruswamy maintained that once the SC made a declaration to include LGBTQIA+ marriages under SMA, other rights such as succession would follow. 

Sr. Adv. Sourabh Kirpal: Queer Community Inherently Entitled to Fundamental Rights as Heterosexual Persons

Sr. Adv. Sourabh Kirpal argued that selectively recognising only heterosexual marriage under the SMA has the same effect as explicitly denying the queer community the same rights. Addressing the Bench’s concerns and the Union’s contentions over the practical implications of recognising marriage equality for queer persons, Mr. Kirpal argued that such an argument would be unacceptable. If practical difficulties are a valid hurdle to recognising fundamental rights, that Parliament can draft laws intended to violate fundamental rights by making it impractical to change them. 

Mr. Kirpal clarified that the queer community wasn’t seeking equal rights because they are granted to heterosexual persons. Instead, they were demanding the fundamental rights that they are inherently entitled to. He also countered Union’s claims that non-heterosexual marriages are detrimental to the institution of marriage. ‘There is nothing more detrimental to a marriage than a gay man marrying a woman and cheating’ he pointed out. Additionally, if a queer person exercises their right to marriage, it would have no detrimental effect on the rights of heterosexual persons. 

Sr. Adv. Vrinda Grover: Natal Families of Queer Persons Are Not Always Supportive

Ms. Grover drew the Bench’s attention to the violence and discrimination faced by queer persons, especially trans persons from their families. She stated that trans persons had to suppress their identities before their natal families. Therefore, their marriages must be recognised to provide them with the shielded support that their natal families could not give them. 

She went on to argue that the SC had recognised ‘atypical’ and ‘chosen’ families such as ones acquired through adoption in its previous judgements. This was also recognised by the Mental Health Act, 2017 . The Act gives a person the right to nominate a person who is not related by blood or marriage. Therefore, the Court must declare that these atypical marriages can be read into the SMA. 

The hearings will resume tomorrow (April 26th, 2023).