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Gender can be fluid, not motherhood: National Commission for Protection of Children on Day 9 of marriage equality hearings

Today, the court went back and forth on issues of adoption and the ideal mode of upbringing of a child. Many state governments have filed intervention applications opposing the recognition of non-heterosexual marriages. It was argued that even if the court gives a declaration which, in the words of the Solicitor General of India, is less than a marriage but more than what is presently available, the State would be opposed to that as well.


ON Wednesday, the hearings on a batch of petitions in Supriyo@Supriya Chakraborty versus Union of India & Ors, on the limited issue of whether gender-neutral situations can be accommodated in the Special Marriage Act, 1954 by 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 moved towards a conclusion. 

It was the ninth day of hearings.

Non-heterosexual parents: State has legitimate interest in ‘ideal’ form of child rearing

Additional Solicitor General of India Aishwarya Bhati, appearing for the National Commission for the Protection of Child Rights (NCPCR), an intervenor in the matter, rejected the concept of gender fluidity on issues with cis-gender identity at their core. She cites as examples such areas such as women’s washrooms and correctional homes, which are specifically reserved for women. According to her, allowing gender fluidity in those spaces would perpetuate inequality on women.

Yesterday, senior advocate Rakesh Dwivedi, on behalf of the Madhya Pradesh government, an intervenor in the matter, had argued that leaving it to the people to determine the core elements of marriage would make the concept of marriage fluid and thereby harm the legitimate interest of the State, which intends to regulate heterosexual marriages. This argument was made in the context of the issue raised by the court of whether there is a fundamental right to marry, irrespective of gender identity and sexual orientation.

The NCPCR had filed an intervention application opposing adoption of children by non-heterosexual couples as that would be akin to endangering their lives. Pursuant to this, Bhati argued that the State has a legitimate interest in the “ideal mode” of child-rearing by heterosexual couples as the child is naturally born to them. Thus, the State is justifying not considering non-heterosexual couples at par with heterosexual couples. However, the CJI pointed out that the law allows a single person to adopt children.

The CJI had previously, on another day of the hearings, given the example of hypothetical heterosexual parents wherein the father is an alcoholic and beats up the mother regularly. He had questioned the State’s stand that non-heterosexual couples cannot provide an ideal environment for the upbringing of the child.

Bhati further argued on the point of women being made to suffer inequality by pointing out that legislation like the Juvenile Justice (Care and Protection) Act, 2015 and the Maternity Benefits Act, 1961 (as amended in 2017) give special focus to mothers, which in the traditional sense could only be defined by the female gender. 

Bhati said, Gender can be fluid, the idea of mother cannot be.” To this, Justice Kohli said, There is sometimes only a father [as the single parent of the child].”

Justice Bhat also added, “We have gone beyond motherhood today. We have gone into parenthood today.”

Bhati continued that adoption is not an alternative to biological birth. However, the CJI pointed out that adoption is also available to parents who can have children biologically but still wish to adopt. He said that in cases where one of the parents dies in the subsisting marriage, the surviving spouse assumes the character of father and mother. 

Bhati emphasised that adoption is only permitted by a heterosexual married couple or by a single parent. 

In turn, the CJI pointed out a recent circular of the NCPCR that disallows even live-in heterosexual couples to adopt children. 

Justices Kohli and Kaul pointed out a scenario where a child has been adopted by a single individual, and the person subsequently enters into a relationship. Does that mean that the child would be taken away, they asked.

Bhati concluded that the main thrust of her submission is that for the welfare of the child, they must have a stable family, which can only be provided by heterosexual married couples.

After Bhat, senior advocate Maninder Singh, representing the Hindu organisation, the Shri Sanatam Dharm Pratinidhi Sabha, an intervenor in the matter, briefly argued by referring to various foreign judgments, including a judgment from Hong Kong, wherein a similar issued was before the court and was rejected by the court.

Thereafter, senior advocate Atmaram Nadkarni, appearing for the Akhil Bharatiya Sant Samiti, another Hindu organisation that is an intervenor in the matter, submitted that recognising non-heterosexual marriages is an attack on the concept of marriage as a heterosexual union. 

Before the hearing on the petitions had begun, 21 retired judges of the high court had last month also claimed that the petitions are an attack on the ‘Bharatiya traditions of marriage’.

Nadkarni, however, said that recognition of civil union of homosexual couples is not an issue, but the same could not be considered as conferring it the legal status of marriage.

Petitions individualise the social institution of marriage 

Advocate J. Sai Deepak, for Bharatiya Stree Shakti, submitted that the petitioners intend to change the societal attitude of heteronormativity and without the participation of the society, it fundamentally hinges their right since the issue is being taken by the court of law and not the Parliament. 

Bharatiya Stree Shakti, a voluntary, autonomous, apolitical organisation advocating for the empowerment of women and families, is an intervenor in the matter.

He further argued that the petitions intend to “individualis[e]” the social institution of marriage. This takes away the social character of marriage as an institution. According to him, the judiciary cannot be a substitute for the consultative process that the legislature takes upon itself. 

Advocate Dr Sasmit Patra, appearing for non-governmental organisations Kanchan Foundation and Shakti Foundation (both intervenors), as well as in his personal capacity as a member of Rajya Sabha, argued on the capacity and functionality of the Parliament, which has larger social ramifications.

Solicitor General of India Tushar Mehta, for the Union government, the respondent, also submitted today that the court must neither give a declaration nor the contours of one. He said that the declaration would anyway be considered as law and would be binding on everyone.

A recap of the previous eight days of proceedings

The petitions have so far been heard for nine days, wherein counsels for the petitioners, respondents, and intervenors brought forth various submissions in favour and against the recognition of marriage equality. 

While the parties and the court were able to reach some kind of clarity on certain issues like the fundamental right to marry and cohabit, and what the way forward for the court is to deal with the issue as a doctrinal concept, other issues like whether making changes in the Special Marriage Act would suffice were argued back and forth with uncertainty. This issue has been the most prominent issue, as it was the starting point of the whole debate on marriage equality. 

On Day 1 of the hearing, the petitioners sought from the court an explicit substantive right to marry and enjoy consequential benefits arising out of the marriage. This, perhaps, could be considered the best and the worst argument. Marriage, as per the petitioners, is a bouquet of rights because many substantive rights as basic as opening a joint account or buying insurance flow from marriage. To consider a mere declaration of marriage without its consequential benefits is like a body existing without a soul, the petitioners had argued. 

It is to be considered as best for it showed certain elements of foresight that if the matter would be left to the Parliament, the LGBTQIA++ community may be deprived of the right or there would be a prolonged legislative inefficiency. 

The petitioners were not wrong primarily for two reasons. The Supreme Court’s judgment in National Legal Services Authority (NALSA) versus Union of India (2014) recognised transgender persons as the third gender. The Supreme Court issued clear guidelines specifically on how the right to sexual orientation is an inalienable right as a matter of dignity, amongst other issues. It mentioned that the court’s guidelines must be given publicity for raising societal awareness and in a way, address societal stigma through positive affirmation. However, nothing really happened. The Parliament did come up with the Transgender Persons (Protection of Rights) Act, 2019, but diluted many rights, including the right to sexual orientation. Now, the recognition of gender identity depends on the certificate to be issued by the District Magistrate under the legislation. 

While decriminalising homosexuality in 2018, the Supreme Court gave much importance to the doctrine of progressive realisation of rights, which is an antidote to the doctrine of retrogression. This simply meant that no such laws which take a step back from the existing rights must be implemented. This is exactly what happened with the Surrogacy (Regulation) Act, 2021. The legislation prohibits LGBTQIA++ couples from opting for surrogacy for reproduction. 

Lastly, since during the hearing on marriage equality, a reference to the Supreme Court of Nepal’s recent judgment in Adhip Pokharel & Tobias Volz versus Ministry of Home Affairs & Department of Immigration, which recognised non-heterosexual marriages, was made, the legislative contribution in this aspect must also be referred, for it has relevant lessons to offer. 

In Nepal, the recognition of the right to marriage as an inherent right was made way back in Sunil Babu Pant versus Government of Nepal (2007), wherein the Nepalese Supreme Court gave legal recognition to the third gender. However, more than a decade has passed and no law has been made yet. The legislative inefficiency has a lot to do with succumbing to prevailing societal stereotypes in the nation and because the majority population is still not ready to accept this form of marriage. The Union Government, in the context of India, calls marriage equality an “urban elitist” view. 

Even though the argument is really promising, it was also the worst argument because it opened a Pandora’s box of issues that are interwoven within it. This was despite the fact that the court took to limit its approach to hearing the petitions only in the context of accommodating gender-neutral situations under the Special Marriage Act. But as more and more arguments were made, it dawned on all parties that deciding this issue would require the court to also decide issues that concerned personal laws. Moreover, the fact that this is clearly within the legislative domain and the Union government’s clear stand that it does not intend to recognise non-heterosexual marriages, made it difficult for the court to venture into this arena. 

The petitioners have argued that only certain provisions of Special Marriage Act, such as Section 21A, have a personal law dimension, and the court could simply decide to exclude that issue and leave it for future litigation. However, according to the court, this would create a classification between heterosexual and non-heterosexual couples. 

Section 21A was added to lift the disability created by an earlier version of the legislation, according to which solemnising marriage of any member of an undivided Hindu, Buddhist, Sikh or Jain family would be deemed to effect the member’s severance from such family. However, Muslim, Christian and Parsi personal laws continue to apply to those married under the Act.

At the very outset of the proceedings, Solicitor General Mehta made it clear that the legislature consciously omitted the right relating to marriage from the Transgender Persons (Protection of Rights) Act. It reminded the court that the Union government, in its affidavit during the hearing of the Section 377 decriminalisation case in 2018, had left the issue relating to homosexuality to the wisdom of the court while making absolutely clear that the issue has no relationship with the recognition of non-heterosexual marriages. 

That is why the court, finally on Day 7 of the present hearing, asked the petitioners if it really wanted a ruling from the court because the interest of the community, which is a wide spectrum of people, may not be fulfilled because of the limited canvas of the issue. In the words of Mehta, if the court opens one window, it will eventually have to open all windows. 

Despite being faced with this issue, there were moments during the hearings when it felt like the court and parties were back in a time when homosexuality was yet to be decriminalised. The court recognised and acknowledged the monumental importance of decriminalising homosexuality and how societal acceptance from 2018 to the present time has gradually changed. This observation acted as a stepping stone for the petitioners to submit on Day 2 of the hearing that now is the time for a positive affirmation of the full realisation of the panoply of rights. 

This was a crucial argument because it eventually helped the court to observe on Day 3 of the hearing that by decriminalising homosexuality, the court necessitated that non-heterosexual couples enjoy a stable “marriage-like” relationship. This observation was another stepping stone for the court to acknowledge that despite the current issues intersecting with personal laws and other legislative domains, there still exists one conceptual domain where the court will have to make a hearing. 

This argument allowed both sides to argue whether the right to cohabit based on sexual orientation has been recognised or not. The petitioners argued on Day 4 of the hearing that the Constitution recognised the right to form an association under Article 19(1)(c). They stated that the right of the parties to non-heterosexual marriage to be recognised was nothing but the right to form an intimate association, which is the right to exclude others, including the State, from that association.

The Union government’s expressed on Day 5 of the hearing its stand that the right to cohabit as a fundamental right does not extend to compelling a State to give it a legal colour of the marriage. This led the court to observe on Day 6 of the hearing that the State has to recognise incidental forms of cohabitation too. 

On Day 7 of the proceedings, the Union government informed that it would be constituting a committee to consider the issues relating to daily life faced by non-heterosexual couples. This gave a chance to petitioners to categorise issues that would require administrative intervention, as well as others requiring substantive legislative changes. However, there is one more issue, which is to identify the real, actual and symbolic meaning of marriage, and whether the same is an evolutionary concept. 

In yesterday’s hearing , the court clarified that whatever the core constituents of marriage, the same are protected by constitutional values. 

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