By decriminalising homosexuality, we contemplated homosexual couples to be in marriage-like stable relationships, says Supreme Court on Day 3 of marriage equality hearings

In today's hearing, the court asked whether the relationship between a man and a woman is so fundamental to the law that including the relationship between same-sex couples in marriage laws by the court would be taking on the capacity of the legislature.

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"AND alien tears will fill for him pity's long broken urn. For his mourners will all be outcast men, and outcasts always mourn."

∼ Irish poet and playwright Oscar Wilde, The Picture of Dorian Gray and Other Writings, quoted in court today by Dr Abhishek Manu Singhvi

The Supreme Court five-judge 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 to hear for a third day today the batch of petitions seeking legal and constitutional recognition of the right to marriage for same-sex couples.

In yesterday's hearing, Senior Advocate and former Attorney General for India Mukul Rohatgi had told the court that a mere declaration of the right to marry would not be enough if the consequential benefits flowing from this right are not made available. He had proposed some substantive changes in the Special Marriage Act, 1954: that the terms 'husband' and 'wife' be changed to 'spouse', and 'male' and 'female' be changed to 'person' to ensure the accommodation of gender-neutral situations.

This came after the Supreme Court, on the first day of the hearing, decided to limit the canvas of the hearing to whether marriage equality could be accommodated within the Special Marriage Act using an incremental approach, and leaving the rest to the society.

At the outset, the CJI clarified that the arguments of the petitioners had to be completed today so that the defendants' arguments could begin tomorrow.

'Urban elitist concept' but no data to prove 

Senior Advocate Dr Abhishek Manu Singhvi, for the petitioners, had yesterday argued that there could not be legislative discrimination on the basis of an intrinsic and core trait such as the natural or innate sexual orientation of a person.

He had argued, "A person's sexual orientation is intrinsic to their being; it is connected with their individuality and identity. A classification which discriminates between persons on their innate nature … would be violative of their fundamental rights and cannot withstand the test of constitutional morality."

To this, the CJI had replied, "So the principle is actually very simple. You cannot discriminate against— the State cannot discriminate against— an individual on the basis of a characteristic over which the person has no control."

The CJI went on to remark, "When you say that you know this is an innate characteristic, it is also an argument in response to the contention that this is very … elitist, or it is urban, or it has a certain class bias… Something which is innate cannot have a class bias."

The Union government had filed written preliminary objections stating that what the petitioners had presented before the court is a "mere urban elitist view" which does not reflect the views and voices of a far wider spectrum and expanse across the country.

The CJI also stated that the Union government had no data to suggest that non-heterosexuality is merely an urban concept.

Senior advocates K.V. Viswanathan and Jayna Kothari, also representing the petitioners, shared the experience of their clients against the allegation of non-heterosexuality being 'urban elitist'.

Viswanathan said, "My client was forced to go to the streets. Zainab Patel, a transgender, disowned by the family. Begged on the streets, came up on her own and today she is, My Lords, Director in KPMG all by herself. [For non-hetero-sexuality] to be branded as urban elitist shows absolute lack of grace. The Union should have shown a little more grace on her account… Today she is a member of the Transgender Council nominated by the Government under the [Transgender Persons (Protection of Rights) Act, 2019]."

Joining the debate, Kothari shared, "[My client] Akkai Padmashali … is a well-known trans activist. At the age of 15, she was thrown out of her house. She had to drop out of school. She was on the street. And thereafter, My Lords, she has come back to the mainstream. This is a life they have to live. To say that they are elitists… These are totally poor, working-class backgrounds…"

Laws can be read in a manner that ensures more stable relationships 

Continuing from yesterday's arguments, Dr Singhvi referred to a foreign judgment in which it has been observed that there is no legitimate aim in denying the right to marry to homosexual couples as it is inconsistent with the right to respect the private life of individuals.

In this case, the issue was that marriage-like relationships (live-in relationships) of homosexual couples were not recognised at par with marriage-like relationships of heterosexual couples.

Dr Singhvi went on to refer to the judgment of the British House of Lords in Ghaidan versus Godin-Mendoza (2004) on statutory interpretation, in which it had been held that a statute cannot differentiate between homosexual and heterosexual couples. However, Justice Bhat led the Bench in pointing out that since the judgment does not relate to matrimony, it may not be relevant to the present case.

Moreover, the Supreme Court does not intend to read down a statute as the House of Lords did in Ghaidan, the Bench clarified. The former is only looking at the expansion of the meaning of a statute in the context of constitutional guarantees.

The CJI asked, "[S]o you are saying that [the Special Marriage Act] has really evolved to recognise the fact that when you decriminalise homosexuality … we have not just recognised … relationships between consenting adults of the same gender; we have also recognised, implicitly … the fact that people who are of the same sex would also be in stable relationships."

"The object of the [Special Marriage Act] was to bring in its fold people who would be governed by matrimonial relationships apart from their personal laws. So, surely law is capable of being broadly read according to you, so as to take into account more stable relationships of same-sex couples," he added.

Dr Singhvi replied that during the drafting of the legislation, the legislators may not have contemplated homosexual relationships.

Justice Bhat clarified that what Dr Singhvi was trying to propound is that the concept of a legal framework transcends contemporary understanding, and it is a dynamic and evolving concept.

Homosexual couples in marriage-like relationships

The CJI made an important observation: that decriminalising homosexuality necessarily contemplates same-sex couples in stable, marriage-like relationships.

Dr Singhvi replied, "Marriage-like is the operative word, that they can live together."

The CJI further added, "But not just a physical relationship. Something more of a stable emotional relationship."

He remarked that it requires the court to redefine the evolving notion of marriage. He said, "[The] law [has] progressed sufficiently to contemplate that the existence of binary gender may … not [be] necessary for the definition of marriage."

Prohibited category and age conundrum 

Yesterday, Rohatgi had proposed that for determining the 'degree of prohibited relationship' under the Special Marriage Act, both parts of its First Schedule could be joined and read harmoniously for homosexual couples. This means that if two men or two women were to get married, both parts would coalesce and apply.

As it stands today, the prohibited degree of relationship of a man with any woman is mentioned in Part I of the Schedule, and the same for a woman is mentioned in Part II of the Schedule.

The same argument was reiterated by Dr Singhvi.

Moreover, the issue of age had also been discussed yesterday. However, a conundrum had emerged, which is that keeping the terms 'male' and 'female' would enable the minimum marital age for men to be applied to same-sex male couples and the minimum marital age for women to apply to female couples respectively. But if the words are changed to 'person', the dual age of both 18 years and 21 years would have to be applied.

The law, as it stands, specifies the legal age of marriage as 18 years for females and 21 years for males.

Justice Kohli had pointed out this conundrum.

Rohatgi had stated that a Bill has been proposed to change the minimum marital age of females to 21 years. That way, the age would also be gender-neutral.

Justice Bhat had said that this may be a dangerous argument to make.

Today, Dr Singhvi proposed that the age would apply as per the gender the person professes. He gave the example of a transgender person and said, "If a person is a man, biologically, and leaning to the feminine side, then the age of the feminine will apply."

Can rape provisions apply in homosexual relationships?

The moment Dr Singhvi pointed out that certain provisions of the Special Marriage Act, such as that pertaining to rape as one of the grounds for seeking divorce would only apply to heterosexual couples, the court erupted in a debate.

The CJI said, "Why cannot this be applied to homosexual couples?"

Dr Singhvi answered that it is a criminal offence defined specifically in terms of "non-consensual penile–vaginal sexual penetration".

A reference to marital rape was also made.

Justice Kaul said, "In a heterosexual marital relationship, there is a possibility of reading rape into it. How can, in a homosexual relationship, [it] be read?"

Dr Singhvi replied that marital rape is not a crime in India.

Notice to marry 

Further, Dr Singhvi addressed a crucial point on the requirement of prior notice to marry under the Special Marriage Act. He pointed out that no other legislation provides such a precondition to marry. Section 5 of the Special Marriage Act requires giving a thirty-day notice of the intention to marry to a district marriage officer.

Solicitor General of India Tushar Mehta interjected and said that it was a different issue, and does not relate to the recognition of marriage equality.

Dr Singhvi continued with his arguments and said, "This is unconstitutional because, before a formal entry into what I consider a vital form of society marriage, you are invading my privacy by directing me that I must declare my intention in the public domain for the objections to be invited [against the marriage].

"It is my personal … autonomy! [It] is the heart of my privacy to decide to whom I associate and when, how and after how much time into the matrimonial union."

Dr Singhvi questioned the purpose of this provision when underlying conditions to marry have already been specified in the Act. If the conditions are violated, the marriage can be challenged anyway, he contended.

Justice Bhat pointed out that this provision was patriarchal, and created at a time when women did not have agency.

The CJI added, "You are virtually laying them open to invasion by society … by collectors, district magistrates and superintendents of police."

The hearings will continue on Monday.