‘All causes have martyrs,’ says respondent, disparaging petitioners’ plea on Day 7 of marriage equality hearings

Today's hearing took a U-turn when the Solicitor General informed the Supreme Court that the Union government is considering constituting a committee to look into the legal issues faced by the LGBTQIA++ community. However, the petitioners countered that the court will anyway have to decide whether marriage or, at the least, the right to cohabit, is a fundamental right.

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Government wants to deal with issues administratively 

THE Supreme Court Constitution Bench headed by Chief Justice of India (CJI) Dr D.Y. Chandrachud and comprising Justices S.K. Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha continued hearing for the third week a batch of petitions in Supriyo@Supriya Chakraborty & Ors. versus Union of India on the limited issue of whether gender-neutral situations can be accommodated in the Special Marriage Act, 1954.

At the outset today, Solicitor General of India Tushar Mehta informed the Supreme Court that as per instructions he had taken from the Union government, the latter plans to constitute a committee headed by no less than the cabinet secretary to consider the issues faced by the LGBTQIA++ community. He said that the government is "positive" about the issues concerned, and the committee to be constituted will coordinate with different ministries and try to consider the issues as far as is "legally permissible".

Dr Abhishek Manu Singhvi, for the petitioners, agreed to list out the petitioners' suggestions so far as the respondent wanted to address them "administratively". However, he pointed out that there are legal issues which only the court will have to address.

To this, Justice Bhat said that although the respondent terms the issues as 'administrative', these are substantive issues that will result in amending laws.

Dr Singhvi said that the petitioners would submit a new chart categorising the list of issues wherein, the first category of issues would be such as could be solved immediately without any requirement of substantive changes. The second and third categories would list those issues that may not be possible to be addressed administratively as these would require substantive changes. However, the last category would be to identify the real, symbolic and actual meaning of marriage, which only the Supreme Court would have to decide.

The CJI termed the last category as the "conceptual domain", adding the caveat that even the conceptual domain requires legislative changes. He said that the court would have to determine how far it could go into formulating a conceptual doctrine.

The CJI then stated that the issues could be categorised under three levels: the first, which would be purely within the administrative domain; the second would consist of changes which the Union government would have to accept as a "matter of principle", which may require some kind of subordinate legislation but would not have to necessarily be dealt with by the Parliament; the third would be the right to marry in the aspect of constitutional precepts, including for same-sex couples, and which must be able to be traced under the Special Marriage Act.

Justice Bhat asked the petitioners if they want a ruling from the court considering that the petitioners are not fighting a battle for just themselves, and the issues concern the larger interests of the LGBTQIA++ community. He added that the current issues dealt with by the court may not cover the larger number of people within the dialectic of the Special Marriage Act.

The parties and the Bench went far and forth on whether the mere declaration of marriage would be enough, considering the petitioners want the court to recognise the right to consequential benefits that flow out of marriage.

The CJI reiterated that the issue faced by the court in tracing the right to marry under Section 4 (conditions relating to solemnisation of special marriages) of the Special Marriage Act is that it is interlinked with different legislation, including personal laws. The latter remains outside the purview of judicial review in the instant case.

Fundamental right to cohabit 

In the previous hearing, Mehta had told the court that the right to cohabit is a fundamental right, but does not extend to the right to marry. Today, carrying forward with this argument, the court formulated that it can decide on the fundamental right of same-sex couples to cohabit together. The court clarified that the right to cohabit would mean cohabiting in a peaceful environment without any discrimination. The court further added that the proposed government committee would have to recognise incidents of cohabitation relationships.

State has no business to recognise any personal relationship with legitimate State interest 

To this, Mehta responded that the right to get a particular social relationship recognised as marriage is not a fundamental right.

He submitted a new note to the court today which elaborated this position of the Union government.

Mehta, reading from his note, argued that it couldn't be presumed that the State is under an obligation to recognise all human relationships. The correct presumption is that the State is under no obligation to regulate personal relationships unless the State has a legitimate interest in regulating the same.

He added that the State recognised heterosexual intimate relationships because these had to be regulated to ensure that people do not marry as per their whims and fancies.

Recognition of marriage is, therefore, only a consequence of the decision of the State to regulate it owing to the legitimate State interest, he averred.

On this argument, the CJI stated that the argument of the petitioners is not that the State is duty-bound to recognise all forms of human relationships. The petitioners' plea is rooted in the anti-discrimination framework, that is, the State by not recognising non-heteronormative marriages is acting in a discriminatory manner.

Mehta replied that this is not a right to equality matter because the classification between heterosexual and non-heterosexual relationships is made on the basis of the nature of the relationship and the object it sought to achieve. According to him, with regard to heterosexual marriages, the object sought to be achieved is the recognition of a family and the continuation of the human race.

Mehta concluded his arguments by stating that even the European Convention on Human Rights (ECHR) recognises only heterosexual marriages and subjects the recognition of the same to national laws.

Article 12 of the ECHR reads, "Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right." He added that the European Court of Human Rights, to date, refuses to recognise non-heterosexual marriage under Article 12, and has only recognised limited relationships based on the socio-political consensus in Europe.

A reference to the decision of the European Court of Human Rights in Schalk and Kopf versus Austria (2010) was made by Mehta. In this case, the court, while recognising that cohabiting same-sex couples living in a stable partnership fell within the notion of "family life", held that Article 12 of the ECHR does not impose an obligation on States to grant same-sex couples access to marriage.

No vacuum can be attributed to Special Marriage Act 

After Mehta's arguments, Attorney General for India R. Venkataramani started his submissions.

The Attorney General submitted that the consequential declaration sought by the court in itself is not the reason to detain the constitutional declaration, and it requires to go through the Parliamentary process for its full realisation. He further pointed out that no further inclusion of any category could be made under the Special Marriage Act.

A case of violating Article 15(1) (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) of the Constitution, as argued by the petitioners, could only arise when State action discriminates against the union of persons other than heterosexual relationships in the context of social benefits, claims or advantages.

His arguments was that the Special Marriage Act could not be faulted on the ground of under-inclusion. The test of under-inclusion or over-inclusion enters the debate only when all classes of categories of persons or entities relevant for a statutory purpose are conceived and identified, followed by inclusions or exclusions, he submitted. At the time the Special Marriage Act was debated and conceived, an alternate conception of marriage of unions of persons other than heterosexual unions did not enter the picture either because of design or because of intent.

Further, Venkataramani referred to the judgment of the Supreme Court in Vishaka versus State of Rajasthan & Ors (1997) and argued that the course adopted by the court by laying down guidelines on the prohibition of sexual harassment at the workplace cannot be replicated for both doctrinal and practical reasons. Thus, no vacuum in that regard could be attributed to the Special Marriage Act. Moreover, since the Special Marriage Act does not cover all possible unions, it could not be construed that non-heterosexual marriage is a legal or constitutional omission that needs to be addressed.

On the point of interpretation, the Attorney General made a distinction between retrieval of a meaning hidden in the text of a statute and adding a new meaning to the existing statute by reasons of social changes and developments. Further developing his argument, he pointed out that the constitutional declaration sought by the petitioners requires necessary social adjustments and changes in the social order. This calls for a statutory intervention on a studied basis.

The Attorney General gave the example of the Marriage (Same Sex Couples) Act 2013 of the United Kingdom, which was based on a consultative process.

According to Venkataramani, an in-built consultation process in a democracy is equally important as a part of the basic structure of the Constitution.

Dignity of heterosexual couples violated 

Senior advocate Rakesh Dwivedi, appearing for the respondent, countered the submissions of Dr Singhvi and argued that the term 'spouse' grammatically may have a flexible meaning but when the term is read in the context of the whole legislation that is the Special Marriage Act, it would only mean either 'husband' or 'wife'.

He further said that by substituting 'spouse' under Section 12 of the Special Marriage Act, the dignity of heterosexual couples is impacted because marriage between a man and a woman is a meaningful relationship.

The court responded that it was not a strong argument. Dwivedi continued, saying while non-heterosexual couples "claim" dignity they should not inflict indignity on heterosexual couple by attempting to dilute the traditional notion of marriage.

Dwivedi further stated that the Indian society is not ready for a cultural revolution and the court must not rush on such issues. He claimed that the reference to the United States Supreme Court judgment in Obergefell versus Hodge (2015) on the recognition of same-sex marriage is not relevant in the Indian context.

To this, the CJI responded, "The existence of same-sex couples is not something which is imported from some Obergefell. It is very much a part of the society."

Dwivedi, however, pointed out that same-sex couples may have been a part of the society, but there was no demand for the recognition of marriage for them. He also stated that marriage cannot be claimed as a matter of dignity.

Further, Dwivedi, responding to the plea made by the petitioners that the court must do something as their lives are passing by, said that "all causes have martyrs".

The hearing will continue on next Tuesday.