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Quoting Navtej Singh Johar, Rohatgi, for the petitioners, argued that marriages are public declarations and public spaces are not heteronormative. The court continued the hearing on whether the Special Marriage Act can be read from a gender-neutral perspective.
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CHOOSING an incremental approach for limiting the canvas to whether the Special Marriage Act, 1954 can accommodate gender-neutral relationships by using the term 'person' rather than just 'husband' or 'wife', the Supreme Court has entered its second day of hearing the batch of petitions seeking legal and constitutional recognition of the right to marriage for same-sex couples.
At the outset today, Solicitor General of India Tushar Mehta told the five-judge Constitution Bench comprising Chief Justice of India (CJI) Dr D.Y. Chandrachud and Justices S.K. Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha that the Union government has written to state governments informing them that the issue of marriage equality is going is being heard by the Supreme Court. To this, CJI replied, "That is excellent. It is not that all states are unaware."
Mehta said, "That should not dilute my request that states should be issued notices."
The Union government has filed a fresh affidavit to implead all states and Union territories as "proper and necessary parties" in the matter, on the basis that it concerns their legislative rights under Entry 5 of the Concurrent List in the Seventh Schedule of the Constitution.
Yesterday, the court refused to entertain the request of Mehta to make states party in the ongoing hearing of the petitions, which also challenge the constitutional validity of the Special Marriage Act, the Hindu Marriage Act, 1955 and the Foreign Marriage Act, 1969 for defining marriage through gendered terminology.
Senior Advocate and former Attorney General for India Mukul Rohatgi, representing the petitioner, opposed Mehta's request, stating, "I am challenging a central law. Merely because it happens to be in the Concurrent List, there is no rationale to say that this petition will be bad for non-joinder of states."
"The letter was addressed yesterday. Your Lordship issued notices five months ago … you could have issued a letter earlier."
Today, Rohatgi submitted that the words 'husband' or 'wife' must be changed to 'spouse', and the words 'man' and 'woman' must be changed to 'person' in the Special Marriages Act to make the law gender-neutral.
Rohatgi, who opened the case for the petitioners yesterday, today began by referring to paragraph 59 of the Supreme Court's five-judge Constitution Bench judgment in Navtej Singh Johar versus Union of India (2018).
Paragraph 59 reads: "The exercise of the natural and inalienable right to privacy entails allowing an individual the right to a self-determined sexual orientation. Thus, it is imperative to widen the scope of the right to privacy to incorporate a right to 'sexual privacy' to protect the rights of sexual minorities. Emanating from the inalienable right to privacy, the right to sexual privacy must be granted the sanctity of a natural right, and be protected under the Constitution as fundamental to liberty and as a soulmate of dignity."
Rohatgti remarked that the right to marriage equality is cast in stone not just by this judgment but also by the Supreme Court's nine-judge Constitution Bench decision in K.S. Puttaswamy versus Union of India (2017).
"In retrospect, I was thinking [that] in some measure we are revisiting this issue even though this issue is decided."
He further stated that he does not want the declaration of the right to marry as a badge. The declaration must be substantive and must flow from laws which are otherwise secular and do not touch upon personal laws, he submitted.
Rohatgi referred to certain laws such as the Payment of Gratuity Act, 1972 and other laws concerning insurance. He said that the application of these laws presupposes marriage.
He gave the following example, "A judge's pension will go to a spouse. A spouse presupposes that you have to be married. So, if one of us [that is, the petitioners] becomes a judge, and gets a pension, tomorrow an issue will arise as to who will get the pension."
Next, he referred to the Income-tax Act, 1961 which states that a gift between spouses is exempted from income tax. He also referred to the Section 57 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which presupposes adoptive parents as those who are married.
He contended that "secular" Acts where the issue of personal laws does not arise might be given an effect to allow declaration of marriage to give the petitioners their rights.
Justice Bhat asked: "But this will also implicate personal laws… We are not looking at it as a whole. We are looking at it in a truncated manner… [W]e will confine this declaration or whatever remedy you are seeking to the Special Marriages Act.
"Others who do not wish to or are not aware of going through the civil form of marriage… if they choose [their religion], they are out of this [the civil union]."
Rohatgi read another paragraph of Navtej Singh Johar, which is as follows:
"If one accepts the proposition that public places are heteronormative, and same-sex sexual acts partially closeted, relegating 'homosexual' acts into the private sphere, would it in effect reiterate the ambient heterosexism of the public space. It must be acknowledged that members belonging to sexual minorities are often subjected to harassment in public spaces.
"The right to sexual privacy, founded on the right to autonomy of a free individual, must capture the right of persons of the community to navigate public places on their own terms, free from state interference."
Rohatgi pointed out that the declaration of marriage is a paraphrasing of what the court has already mentioned in the above paragraphs.
"I walk into a public space with my partner knowing that the law and the State recognises this union as marriage and that nobody will raise a stigma against me. I should walk into public, private employment, pension, gratuity, etc. and [know] that I am equal to heterosexual group…
"[The decriminalisation of homosexuality] started a negative part. Let there be a positive affirmation," he submitted.
Rohatgi clarified that the remedy the petitioners are seeking from the court is an explicit right which is: "Persons are entitled to marry under the Special Marriage Act regardless of their gender and sexual orientation."
"All laws where rights, duties, obligations and privileges flowing from marriage are conferred to hetrosexual couples married under the… [Justice Kaul interjected before the sentence could be completed]"
Justice Kaul asked: "What you are asking is an explicit declaration? Though you are confined to the Special Marriage Act, you are saying whatever the consequences of registration [of marriage] are, must also be available [to you]."
"The struggle will not end today. But if we succeed, we should get an explicit declaration." Rohatgi added.
Referring to a legal research paper titled Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in Human Rights and the Unwritten Constitution, cited in Navtej Singh Johar, Rohatgi quoted from it: "The right to privacy may be construed to signify that not only are certain acts no longer immoral, but that there also exists an affirmative moral right to do them."
Rohatgi said, "I rely on this part. The immoral part is now gone."
He then emphasised on another line from the paper: "Sexuality cannot be construed as something that the State has the prerogative to legitimise only in the form of rigid, marital procreational sex."
He said, "This is exactly the argument of the other side: Biological man and woman and their union is not against the order of nature."
Rohatgi said that the petitioners are relying on the Supreme Court judgments in Shakti Vahini versus Union of India (2018), Shafin Jahan versus K.M. Ashokan (2018), and Deepika Singh versus Central Administrative Tribunal (2022).
All these judgments hold that everyone has a right to marry a person of their choice.
In Shakti Vahini, a three-judge Bench of the court issued directives to prevent honour killings at the behest of khap panchayats and protect persons who enter into marriages that do not have the approval of the panchayats.
In Shafin Jahan, the court set aside a Kerala High Court judgement which annulled the marriage of a twenty-four year old woman with a man of her choice in a habeas corpus petition instituted by her father.
Rohatgi also referred to a paragraph where the CJI, also a part of the Bench in Shafin Jahan, observed, "The choice of a partner, whether within or outside marriage, lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable.
"The absolute right of an individual to choose a life partner is not in the least affected by matters of faith… Social approval for intimate personal decisions is not the basis for recognising them."
Rohatgi submitted, "We are equal human beings entitled to the same benefits of the Constitution in the same manner as anyone else!"
He further stated that the declaration of marriage is nothing but requisite institutional recognition as articulated by the Supreme Court in Navtej Singh Johar as "[s]ocial institutions must be arranged in such a manner that individuals have the freedom to enter into relationships untrammelled by binary of sex and gender and receive the requisite institutional recognition to perfect their relationships."
Sometimes the law has to take the lead, Rohatgi said while citing the Hindu Widows Remarriage and Property Act, 1989.
"Here also we need to push the society to acknowledge us as equals in all respects because the Constitution says so and this court enjoys morality, authority and public confidence…
"Our parents have by and large accepted us. We are already out of the closet. We have gone through the process with our parents who belonged to earlier generations… They want us to settle. They want us to have a family. They do not want us and our children to be ostracised…
"All this has to be wiped out if the Constitutional goal of the Preamble as reiterated by this court in [National Legal Services Authority versus Union of India (2014)], Puttaswamy and Navtej has to be given full effect."
Advocate Saurabh Kirpal, at the juncture, requested Rohatgi to inform the court about the recent decision of the Supreme Court of Nepal to recognise marriage equality.
Last month, a division Bench of the Supreme Court of Nepal, comprising Justices Nepal Hari Prasad Phuyal and Tanka Bahadur Moktan, in Adhip Pokharel & Tobias Volz versus Ministry of Home Affairs & Department of Immigration, asked Nepal's Ministry of Law and Justice to prepare an equal marriage law or amend existing laws to accommodate the principles of equal marriage.
"This is definitely not a case of urban elitism. Nepal is certainly not an urban elite."
Rohatgi continued to emphasise on the need for positive affirmation for the full realisation of rights.
He stated that the court has already observed that the constitutional principles which have led to the decriminalisation of homosexuality must continuously engage in a rights discourse to ensure that same-sex relationships find true fulfilment in every facet of life.
The law cannot discriminate against same-sex relationships. It must also take positive steps to achieve equal protection, he underlined.
"The State should come toward accepting gracefully and not gradually."
The constitutional principles on which it is based have an application to a broader range of entitlements.
The Indian Constitution is based on an abiding faith in those constitutional values. In the march of civilisations across the spectrum of a compassionate global order, India cannot be left behind, is what the court observed in Navtej Singh Johar, explained Rohatgi.
"We have to at least go ahead with Nepal, at least this region."
He gave the example of the United States, and said that a large part of the society there is still conservative, which is why the Supreme Court of the United States (SCOTUS), in Dobbs versus Jackson Women's Health Organization (2022) held that abortion is not a constitutionally protected right.
"They have gone back on abortion!"
But now that the Respect for Marriage Act, 2022 enacted there protects and give legal recognition to marriage equality, the moral authority of the SCOTUS has also changed, he argued.
He also remarked that during the 1880s, the era of Victorian morality emerged. But if we go back to Khajuraho and other similar places in India where sexual acts have been depicted in paintings and on walls, it is representative of the concept of Indian morality.
"Our morality was far more advanced. Not Victorian. Not stereotyped. Not stigmatised in this form… The British period … made the laws. They conquered India. India became a dominion."
Rohatgi stated that the court has to essentially guard 'constitutional morality'. He read a passage from Navtej Singh Johar, wherein the court said that "the invocation of constitutional morality must be seen as an extension of Dr Ambedkar's formulation of social reform and constitutional transformation."
Rohatgi cited what Dr B.R. Ambedkar wrote in this context in his book Annihilation of Caste: "The assertion by the individual of his own opinions and beliefs, his own independence and interest— over and against group standards, group authority, and group interests— is the beginning of all reform. But whether the reform will continue depends upon what scope the group affords for such individual assertion."
Rohatgi concluded that the Constitution protects consensual intimacies including the right to marry, and the State has no business to intrude into these personal matters, as reiterated by the Supreme Court in Navtej Singh Johar.
Rohatgi proposed that in Section 2(b) of the Special Marriage Act, which defines 'degree of prohibited relationship' as with 'a man and any of the persons mentioned in Part I of the First Schedule' and 'a woman and any of the persons mentioned in Part II of the said Schedule', the terms 'man' and 'woman' be replaced with 'persons'.
In this part, the two schedules would also be clubbed for homosexual couples. This would accommodate the rights of marriage equality.
Moreover, Section 4 which states the conditions for solemnisation of marriage, uses gender neutral terms like persons and spouse, he pointed out.
Section 4(c), which states the male must have completed the age of twenty-one years and the female the age of eighteen years, could remain as it is, he submitted.
Justice Bhat asked, "But there are other people on the spectrum. How do they get accommodated?"
Rohatgi replied that this will be dealt with by other counsels.
He further suggested that for the restitution of conjugal rights under Section 22 of the Act, the term 'husband' and 'wife' could be replaced with 'spouse' to be considered as the aggrieved party.
The Section otherwise mentions general neutral terms like 'aggrieved party' or 'person'.
Similar changes would have to be made in Section 23 on judicial separation and Section 27 on divorce.
The Special Marriage Act is gender-neutral. However, certain rights such as interim and permanent alimony and maintenance is specifically given to women, Rohatgi averred.
He emphasised, "Read it as 'spouse'. Give rights to both!"
