Can’t pass all our lives waiting for constitutional rights of equality and dignity, contends counsel for marriage equality recognition at SC on Day 1 of hearing

As the court began hearing the petitions on the recognition of marriage equality, the Union government raised the plea to hear its preliminary objection that the court cannot create a new socio-legal institution. The court has now decided to hear the issue on a limited canvas, using an incremental approach, to see whether gender-neutral situations can be accommodated within the Special Marriage Act. 

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"YOUR Lordships have removed one [stumbling] block, which is that [homosexual persons] cannot go to jail," senior advocate and former Attorney General for India Mukul Rohatgi submitted, referring to the decriminalisation of homosexuality by the Supreme Court in 2018.

"The second step has to be affirmative, which is the recognition of the right to marriage so that we are equal, recognised by the State, and so that the society follows the State because society is resistant to change," he continued, while opening the case for the petitioners in a batch of petitions seeking legal recognition of marriage equality.

A 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 is currently hearing more than 20 petitions in Supriyo@Supriya Chakraborty & Anr. versus Union of India.

The petitions also challenge the constitutional validity of the Special Marriage Act, 1954, the Hindu Marriage Act, 1955 and the Foreign Marriage Act, 1969.

Preliminary objections rejected 

The hearing on these petitions began with Solicitor General of India Tushar Mehta asking the court to first decide on the Union government's preliminary objection that the Parliament is the appropriate forum to create a new socio-legal institution of marriage.

Mehta also mentioned that since the subject of marriage falls under the Concurrent List of the Seventh Schedule of the Constitution, the states should be heard. Otherwise, the petitions will not be maintainable.

The Bench, however, was not inclined to entertain Mehta's argument and stated that the petitioners should first open the court.

The CJI said: "The nature and tenability of your preliminary objections will depend on the canvas in which the case is opened up."

He told Mehta not to dictate how the court should proceed.

Rohatgi: Cannot wait for the legislature to act, life is passing by 

Rohatgi went on to refer to the United States (US) federal law, the Defense of Marriage Act (DOMA), which prohibited marriage equality in the US. It was subsequently rendered toothless by the US Supreme Court in 2012. Last year, the US repealed the DOMA and enacted the Respect for Marriage Act, which specifically gives statutory recognition to marriage equality across the US.

The CJI asked, "These are essentially matters in the US and [the United Kingdom] where the legislature had intervened earlier by outlawing and later on by recognising. In the absence of legislation, how does the court go about? … Is there any indication in our legislation precluding the court, or is there a legislative space within which the court can then decide?"

In response, Rohatgi said that in the context of the US, the legislature acted pursuant to the US Supreme Court's judgments.

Justice Kaul asked, "What is the right of marriage and what is the constitutionality of enforcement of a right to marriage?

"What [the respondents] are saying is that you live together and you can do whatever you want. But you cannot tell that you want to perform whatever ceremony you call a marriage," he pointed out.

Rohatgi said, "If, as distinct from the [United Kingdom] or other places, we have a fundamental right under Articles 14, 19 and 21 [of the Constitution] to be treated as identical and equal to our other brethren, then our full enjoyment of rights to be equal to them includes the right to a dignified life … it includes the right of dignified life, which includes the right to choose a partner for marriage…

"If rights are identical, I must get the recognition of my union the same way as the recognition of two others and since it is based on the implementation of my fundamental rights, I can come to the court and the court need not wait for the legislature."

He then referred to the Supreme Court's judgment in Shayara Bano versus Union of India (2017), in which it was argued by the petitioners:

"[T]he Parliament was reluctant in bringing out such a legislation (presumably, for political considerations), it was the bounden duty of this court, to declare such existing laws which were derogatory to the dignity of women, and which violated the concept of gender equality, as void, on account of their being in conflict with the fundamental rights contained in Part III of the Constitution."

The court considered this argument while declaring the practice of triple talaq discriminatory and unconstitutional.

We cannot wait for the legislature and there cannot be a mandamus against the Parliament. Our lives will be gone by then, Rohatgi told the court.

"Your Lordships have stated that if the fundamental rights are violated, the doors of this court are open. I have a right to complain that this is what is happening to us in real life … People still say what right do you have to get married … The law cannot remain static."

CJI: Either we fill the legislative void or locate the right in existing laws 

The CJI said, "Assuming you are right that you are entitled to a declaration of the right to marry, then there are two alternative lines of approach according to you. Either the court finds the legislative void that the Parliament is not recognising the right to marry and the court supplants that deficiency. The other option is to locate the modalities for implementing that declaration in the existing law."

Rohatgi referred to this court's judgment in Vishaka & Ors. versus State of Rajasthan & Ors. (1997) and pointed out that there was no precedent on the prohibition of sexual harassment at the workplace. In that judgment, the court laid down a set of rules which worked as interim law under Article 141 (law declared by Supreme Court to be binding on all courts) of the Constitution till the Parliament came up with a law.

Further, he pointed out that in Vishaka, there was no past history but in the present case, there is a past history where rights have been recognised in Shafin Jahan versus Ashokan K.M. & Ors. (2018) (in which the court recognised that the right to dignity includes the right to marry), Justice K.S. Puttaswamy (retd) versus Union of India (2017) (the court recognised the right to privacy as an intrinsic aspect of personal liberty) and Navtej Singh Johar.

"All I am requesting is the second step. The second step is [that the right of marriage] be implemented not by the Vishaka rules but by virtue of the law already available. By a process of legislative interpretation."

Justice Kaul asked, "Are you canvassing for filling in the vacuum and leaving it to the legislation to do what it wants?"

Rohatgi responded, "No … Your Lordship may give a declaration and then leave it for somebody else. Life is passing by. [For] how long we will [have to] wait?"

Justice Kohli then asked, "So, you are asking for an interpretation of the legislation as it stands to be expansive?"

"We simply want that the laws can be read down so that there is no conflict between the existing laws and the declaration I am seeking from this court," Rohatgi averred.

"If I have a constitutional and fundamental right and Your Lordships declare so and [the Special Marriage Act] remains the same, then there is a conflict between the existing law and the constitutional right so declared," he explained.

He further pointed out that the legislative draft of the Special Marriage Act cannot in its existing form stultify what the petitioners are constitutionally entitled to get.

Next, senior advocate K.V. Viswanathan began his arguments for the petitioners.

He said, "If your Lordship finds that confining the status of marriage to heterosexual couples is wrong and this is a status which needs recognition by a State and is denied to a set of people by the State who otherwise have a fundamental right … it is for the Parliament to tailor the law in accordance with fundamental rights. It cannot be that you await for them to legislate.

"That would be like submitting to popular will which is anathema to fundamental rights."

CJI: We can adopt an incremental approach 

The CJI said, "At this stage, we can at least steer clear of personal law… Perhaps you all should address us on this aspect."

Senior advocate Dr Menaka Guruswamy, for the petitioners, clarified to the Bench that the issue is not just limited to personal law but to statutory law.

Taking the example of the Hindu Marriage Act, Dr Guruswamy told the court that the reforms in this legislation have been in the context of statutory law.

She referred to the fact that the Hindu Marriage Act included inter-caste and sagotra marriages, which were not permitted in sacramental Hindu law.

The CJI then said, "There may be some amount of sage wisdom in also going about our interpretative task in an incremental manner because otherwise do we confine ourselves to Hindu Marriage Act? What about the Parsi Marriage Act? What about Muslim law?

The Constitution and law are continuously evolving and the court has to be mindful of the fact that we are doing it by the process of interpretation … [There is a need for] some element of judicial discretion going incrementally and covering a canvass for the present… Confine yourselves to this incremental canvas."

According to the CJI, confining to the incremental canvas is better to allow the society and the Parliament's perception to evolve over time, because the Parliament has to respond to the evolution of society.

"We cannot deny the fact that undoubtedly a legislative element is involved by way of state and Parliament… We need to balance out various facets… We do not have to decide everything to decide something in this case," he said.

Justice Kaul stated, "One is the restrictive approach by Rohatgi to only construe Special Marriage Act … whether other issues arise depends on how we interpret these aspects. Other issues may or may not survive the day depending on what view we take on the core issue… Sometimes incremental changes in the issues of social and societal ramifications are possibly better…

"Do not step into personal laws under different religious norms … only say that the Special Marriage Act be interpreted in a manner by reading into it a gender-neutral situation," he averred.

The CJI then said, "Perhaps then you can assist us on how we can develop the notion of civil union which rarely finds recognition in our statutes, namely the Special Marriage Act."

The CJI said that after the court delivered Navtej Singh Johar, society has evolved positively, and there is a greater acceptance of same-sex relationships in society.

He said, "There is acceptance which is evolving and in this growing consensus, the court is playing a dialogical role and moving towards a more equal future while being conscious of its own limitations."

Dr Guruswamy responded that "marriage is not just a question of dignity. It is also a bouquet of rights that LGBTQIA++ is being denied after Navtej Singh Johar." She gave a personal example of not being able to buy Supreme Court Bar Association insurance along with her same-sex partner.

Dr Abhishek Manu Singhvi, for the petitioners, also pointed out that giving a right to marriage will not be enough if no consequential benefits follow it.

Dr Singhvi also argued that the terminology 'same-sex marriage' is not correct, and the better term is two consenting adults. He submitted, "If your Lordship were to hold the right of same-sex marriage is valid, it is not intended to just limit it to same-sex because LGBTQIA++ includes the whole shades of the spectrum."

Dr Singhvi concluded by stating that states should not be allowed to intervene in the present matter.

Mehta: There is a conscious omission in the Transgender Act which otherwise covers all aspects 

After summing up the remits of the case, Mehta told the court that the issue of concern is not to do with the rights to privacy, equality or dignity, as the same are covered under the Transgender Persons (Protection of Rights) Act, 2019.

Mehta then went on to read different sections of the Transgender Persons Act.

He said, "Please see the provision against discrimination. There are arguments that they are not getting this or we are not getting that treatment." After reading the provision, he argued that "'transgender' here means LGBTQI and not what we colloquially or conventionally understand."

Mehta emphasised that the matter only deals with the limited question of the conferment of  socio-legal status to a new institution and whether that can be done through judicial adjudication.

Moreover, he told the court that whatever the court decides will have implications on personal laws and therefore, the states' pleas must be heard.

Justice Kaul clarified that since the court is confined to one issue and not going into personal laws, states need not be heard. He said, "When we are not going into it, why should there be a compulsion on the court to go into it?"

Justice Bhat asked Mehta to clarify his point. Mehta answered, "One Mr A is Hindu. He wants to continue as a Hindu and wants to get married under the Hindu Marriage Act…"

The court interjected before Mehta could complete the example, and clarified that the court was not receptive to that. Mehta protested, "Then you are just begging the question!"

"We are not being prejudiced. We are neither accepting nor rejecting the issue. We cannot be compelled to hear everything else," Justice Kaul replied.

Further, Mehta argued that if the court is persuaded to take up the Special Marriage Act just because one of the sections uses the term 'person', then it should note that the legislative intent throughout the Act is confined to a relationship between a biological male and a biological female.

The CJI interrupted and said, "[This is a] very important value judgment you are making: [that] the very notion of a biological man or a biological woman is absolute and inherent."

Mehta replied, "Biological man means biological man. It is not a question of notion!"

The CJI responded in disagreement, "Yes, of course, it is! There is no absolute concept of a man or woman at all… It is not a question of what your genitals are. It is far more complex."

Mehta concluded by stating that the court will have to examine if the right to marriage de hors the law is a fundamental right. If the court is considering the notion that the concept of man or woman is not absolute, the court will unintentionally make many statutes unworkable.

"I may have the genitals of a man but [am] otherwise a female … then how will I be treated under the Indian Penal Code? Can I be called for a [statement under Section 160 (police officer's power to require attendance of witnesses) of the Criminal Procedure Code]?" (Since as per this provision, the police cannot seek attendance of a witness who is a woman outside her place of residence; this same restriction does not apply to witnesses who are men between the ages of 15 and 65 years.)

"There are several issues. Better for the Parliament to go into [them]."

Mehta pointed out that in Navtej Singh Johar, the issue was limited to the decriminalisation of homosexuality. The Union government in its affidavit in that matter had confirmed that the issue must not touch upon marriage or other rights. But the window of the right to marriage was opened.

Similarly, if the court were to deal with the present issue, the window of personal laws would be opened, Mehta contended. He raised the issue of the consequences it may have for future generations.

The CJI simply answered, "We cannot ever bind the future generations," averring that future generations will decide for themselves.

Claim civil rights but not marriage 

Advocate Rakesh Dwivedi, appearing for the Madhya Pradesh government, told the court that before anything, the court would have to first examine whether homosexual couples who are seeking equality at par with heterosexual couples can be considered equals.

He said, "It is going to be our strong submission that there is no equality [between heterosexual unions and homosexual unions]," contending that it is one thing for same-sex couples to claim certain civil rights, as have been granted to them in Navtej Singh Johar, where "the only issue was the decriminalisation [of offences] under Section 377 [(unnatural offences) of the Indian Penal Code]… But that [judgment] is not the final authority on complete equality between [the] two [different kinds of] relations."

"One relation has been existing since time immemorial. There is an enormous continuity for the heterosexual union. Heterosexual union is responsible for the perpetuation of the human race…," he continued, contended that love, affection and care are just one part of the heterosexual union, "They are not the core of the relationship."

According to Dwivedi, heterosexual union is not a gift of the law.

He further said that heterosexual marriages are based on custom, usage and religion, and its core purpose was to perpetuate the human race. Same-sex relations may have existed earlier as well but they "were never given equality".

"Go on far back in history. They have existed but not on an equal level."

Sibal: Take the issue as a whole or not at all

Senior Advocate Kapil Sibal, representing Jamiat Ulema I-Hind, while stating that same-sex relationships should be celebrated as that is how society must evolve, stated that there are implications of giving it statutory recognition.

"If the marriage breaks down, and they have adopted a child; who is going to be the father? Under procedural law, who is going to be the woman? Who is going to get maintenance?

He cautioned the court not to deal with the matter piecemeal, "Either you do everything or you do nothing."

The hearings will continue tomorrow.