On April 18, a Supreme Court Constitution Bench headed by Chief Justice of India Dr D.Y. Chandrachud and comprising Justices S.K. Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha, began hearing a batch of petitions in Supriyo@Supriya Chakraborty versus Union of India & Ors, which claim marriage equality in India. Yesterday was the tenth and concluding day of the hearings. Here is a brief account of the issues, the lead-ups and each of the ten days of the hearings.
Some noteworthy developments leading up to the hearings
As many as nine petitions seeking recognition of marriage equality were filed across various high courts, including the Delhi High Court.
The Union government filed an affidavit before the Delhi High Court in February 2021 opposing the legal recognition of marriage equality, saying that the sexual relationship of same-sex individuals is not comparable with the Indian family unit of a biological man as husband and a biological woman as wife.
In November 2022, the Union government sought to transfer all pending petitions to the Supreme Court.
On December 6, 2022, a gay couple approached the Supreme Court for the recognition of its marriage. Notice was issued on December 14 seeking a reply from the Union government.
On January 6, a three-judge Bench of the Supreme Court comprising Chief Justice of India (CJI) Dr D.Y. Chandrachud and Justices P.S. Narasimha and J.B. Pardiwala, transferred all pending petitions pertaining to the matter to the Supreme Court.
On March 13, the three-judge Bench termed the matter of constitutional importance, referring it to a five-judge Constitution Bench.
On March 24, a group of 21 retired high court judges issued a public statement urging “conscious members of the society”, including the petitioners, to refrain from pursuing the issue of marriage equality at the Supreme Court in the interest of Indian society and culture.
The National Commission for the Protection of Child Rights has opposed the adoption of children by same-sex couples, saying that it would endanger children’s lives. The Delhi Commission for Protection of Child Rights, on the other hand, has supported such adoption, stating that no empirical data exists to suggest that homosexual couples are unfit to raise a child.
Various state governments, including those of Gujarat and Madhya Pradesh, have sought intervention in these petitions. The Supreme Court has not impleaded them as parties yet.
The Union government filed preliminary objections against the petitions, as per which marriage equality is as an “urban elitist” phenomenon, and that the Supreme Court should first decide whether it could legislate to create a “separate socio-legal institution of marriage” between persons not contemplated for the marriage rights under existing law. It had earlier, via an affidavit, opposed the petitions at the Supreme Court arguing that marriage ‘necessarily and inevitably’ presupposes a union between two persons of the opposite sex.
The hearing began on an acrimonious note when Solicitor General of India Tushar Mehta told the court he would have to see if the Union government wants to participate in the proceedings or not. This happened after the court refused to entertain the government’s preliminary objections that the Parliament is the proper forum for this matter.
The court decided to adopt an incremental approach and limit its canvas to accommodating gender-neutral situations in the Special Marriage Act.
CJI Dr Chandrachud and Solicitor General Mehta found themselves on the opposite sides of the argument on the concept of biological determination of gender. Mehta argued it is not a question of notion, while the CJI cautioned against such a binary approach.
Who said what
Senior advocate Dr Abhishekh Manu Singhvi (for the petitioners):“[Homosexual persons] can [no longer go to] jail. The second step has to be affirmative, which is the recognition of the[ir] right to marriage.”
Senior advocate Dr Menaka Guruswamy (for the petitioners):“Marriage is not just a question of dignity. It is also a bouquet of rights.”
Senior advocate Rakesh Dwivedi (for the intervener, the Madhya Pradesh government):“Love, affection and care are just one part of the heterosexual union … they are not [its core].”
Mehta informed the court that the Union government has filed a fresh affidavit seeking all states and Union territories to be made parties.
Against the claim of the Union government that non-heterosexual marriage is an urban, elitist concept, the court observed that no data has been put on record to prove this contention.
The court asked the petitioners to suggest how other people on the spectrum (of LGBTQIA++) would be accommodated upon the prospective changes in the Special Marriage Act.
Who said what
Senior advocate Mukul Rohatgi (for the petitioners):“Our [subcontinental] morality was far more advanced. Not Victorian. Not stereotyped.”
Senior advocate K.V. Viswanathan (for the petitioners, after giving examples of the adversity some of the transgender petitioners have had to overcome): “[For non-heterosexuality] to be branded as urban elitist shows absolute lack of grace [on the part of the State].”
Senior advocate Jayna Kothari (for the petitioners):“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… To say that they are elitists…! These are totally poor, working-class backgrounds.”
The age conundrum under the Special Marriage Act if the terms ‘husband’ and ‘wife’ are changed to ‘person’ as the legislation contemplates different minimum marital ages for men and women comes up.
The court says that by decriminalising homosexuality, it has necessarily contemplated homosexual couples being in a stable, ‘marriage-like’ relationship.
According to the court, the requirement of the thirty-day notice period under the Special Marriage Act is patriarchal and invasive.
Who said what
CJI Dr Chandrachud: “[The] law [has] progressed sufficiently to contemplate that the existence of binary gender may … not [be] necessary for the definition of marriage.”
CJI Dr Chandrachud (on the argument that homosexual couples are not fit parents): “What happens to a child when, in a heterosexual marriage, an alcoholic father comes and thrashes the wife every night?”
Senior advocate Raju Ramachandran (for the petitioners): “I represent … a Dalit woman … and her partner … [who] is a baker. She is the baker that [former Supreme Court judge] Justice Vivian Bose refers to when he [wrote] that the Constitution is for the butcher, the baker and the candle-maker.”
A feisty long weekend
There was a break in the hearings over an extended weekend. On Thursday, the CJI had informed the litigants that the court would take a break from the case on Friday to attend to other “urgent court matters“.
Over the weekend, Justices S.K. Kaul and S. Ravindra Bhat became indisposed, the former due to a minor fall and the latter because of COVID.
Also over the weekend, the Bar Council of India unanimously passed a resolution cautioning that any decision by the Supreme Court in the batch of petitions on recognition of marriage equality may prove harmful to future generation as “99.9 percent of the people” in India are opposed to it.
On Monday, the All-Delhi Bar Association joined the chorus to oppose the day-to-day hearing about recognition of marriage equality.
The hearings resumed only on Tuesday in a hybrid mode, with the two indisposed Justices attending virtually.
The court told the petitioners that the Parliament has the power to interfere with the limited canvas of accommodating gender-neutral situations under the Special Marriage Act.
The court made a crucial observation that casting a positive affirmation on the State may not always necessarily mean the creation of a law.
The court informed the petitioners that reading the gender-neutral situations under the Special Marriage Act means personal laws also have to be changed.
Who said what
Senior advocate Anand Grover (for the petitioners): “The origins of these people [same-sex couples who are compelled to run away from their family] are [in] the small towns. They are not from Kolkata and Delhi. They are from very small towns. They come to the capital city where the high court is because they need protection.”
Advocate Jayna Kothari (for the petitioners): “Our families give us not only love and care but also psychological and economic support. Can we not have a right to have our families recognised?”
Senior advocate Dr Menaka Guruswamy (for the petitioners): “We are not asking for anything special today. We [are] only asking for a workable interpretation of the Special Marriage Act.”
Against the statement of Mehta that the Special Marriage Act was intended for inter-caste marriages, the court remarked that the legislation was meant to be religion-neutral.
Who said what
CJI Dr. Chandrachud: “Elite argument [Union Government has argued that same-sex marriage is an urban elitist view]… Elite is a matter of prejudice. It has no bearing on how we decide the matter.”
Advocate Arundhati Katju (for the petitioners): “What I ask for today is the right to not be different [from heteronormative couples].”
Advocate Amritananda Chakravorty (for the petitioners): “If the Parliament wanted to restrict joint adoption [for non-heterosexual couples], it would have used the term ‘marriage’. But it has not. It uses the word ‘couple’ and ‘spouse’.”
The court acknowledged that accepting the proposition of the petitioners to accommodate gender-neutral situations under the Special Marriage Act would likely mean re-writing the legislation.
The court observed that in its current form, Section 375 of the Indian Penal Code, which defines the offence of rape, will not apply to non-heteronormative couples as the offence can only be committed against a woman by a man.
The court remarked that if the State is unwilling to recognise non-heterosexual union as marriage, some institutional label must be given to such union.
Solicitor General Tushar Mehta (for the respondent): “Right to love, right to cohabit, right to choose one’s partner and right to choose one’s sexual orientation is a fundamental right. But there is no fundamental right to seek [legal] recognition of that relationship as marriage or by any other name.”
CJI Dr Chandrachud: “Once you recognise there is a [fundamental] right to cohabit … then to say you cannot seek any legal recognition at all [cannot be the case]… There is a corresponding duty on the State to at least recognise that all the incidents of social cohabitation must find recognition in the law.”
At the outset, Solicitor General Tushar Mehta told the court that the Union government is ready to deal with the issue administratively, and will constitute a committee to understand and explore the issues faced by members of the LGBTQIA++ community in their everyday lives.
The court asked the petitioners to reconsider if they want a ruling from the court as the larger interest of the LGBTQIA++ community may not be covered under the Special Marriage Act.
The petitioners communicated to the court by consensus that the right to marry is an inalienable right, which only the court would have to decide.
Who said what
Senior advocate Saurabh Kirpal (for the petitioners): “The vast majority of [non-heterosexual] young people I have spoken with want to get married… We say we want to get married. Why should we be second-class citizens?”
Solicitor General Tushar Mehta (for the respondent): “[The] right to get a particular social relationship recognised as marriage is not a fundamental right.”
Senior advocate Rakesh Dwivedi (for the intervener, the Madhya Pradesh government): “Is … the dignity of heterosexual [marriages not] affected because the court is asked to substitute [the terms ‘husband’ and ‘wife’] with spouse?”
In the last few hearings, the court has been focusing on the fundamental right to marry and cohabit. Today, the court remarked that each of the core constituent elements of marriage is protected by constitutional values, and the right to marry includes the right to cohabit.
While the CJI specified certain elements which he termed as the core constituents of marriage, Justice Bhat put it differently and remarked that the elements of marriage are to be ultimately decided by the parties to the marriage.
Senior advocate Rakesh Dwivedi told the court if the contents of marriage are left for the parties to decide, then marriage will become a fluid concept, which will hinder the State as it has a legitimate interest in regulating marriage.
Who said what
Chief Justice of India Dr D.Y. Chandrachud: “To say that there is no fundamental right to marry would be far-fetched… What are the core constituents of marriage? If you look at each of the constituent elements, each of them is protected by constitutional values.”
Senior advocate Rakesh Dwivedi (for the intervener, the Madhya Pradesh government): “TheConstitution only gives a fundamental right to form relations or association under Article 19(1)(c). What we call our [heterosexual] association as marriage … has resulted in a social institution.”
Justice S. Ravindra Bhat: “Right to an association, in the classical sense, is essentially the right to exclude other people from the association.”
With the hearings nearing an end, the issue of whether the court should give a declaration on the right to marry and leave the rest to the Parliament is still being hotly debated. On Day 9, the Union government clarified that a mere declaration will also be binding, so the court should refrain from giving it.
The Union government informed the court that it has received replies from state governments of Manipur, Andhra Pradesh, Maharashtra, Uttar Pradesh, Assam, Sikkim and Rajasthan. While all states have sought some time to examine the issue, Rajasthan and Andhra Pradesh have opposed the recognition of non-heterosexual marriages.
The court expressed concern when the National Commission for the Protection of Child Rights told it that less than 1,500 children are legally up for adoption to 30,000 prospective adoptive parents.
Who said what
Additional Solicitor General Aishwarya Bhati (for the National Commission for the Protection of Child Rights): “Gender can be fluid, the idea of mother cannot be. Benefits under my laws is limited to the definite definition of mother, which is not certain in the relationship of same-sex or gender-neutral or gender-fluid couples”.
Justice S. Ravindra Bhat: “We have gone beyond motherhood. We have gone into parenthood today. There are single parents too.”
Advocate J. Sai Deepak (for the Bharatiya Stree Shakti): “[P]etitions raise the question of change in heteronormative attitudes, does the society have a right of agency to participate in these proceedings of not or at least in this particular issue or not..? It fundamentally hinges on the right of the agency of the society to participate in this particular discussion.“
With the hearings ending and the Constitution Bench reserving the matter for judgment, the petitioners submitted their concluding remarks and suggestions. The petitioners exhorted the court to uphold constitutional values of freedom and equality, pointing out examples from other countries vis-à-vis marriage equality.
There is a conscious omission in the legislation in the context of marriage.
On one hand, society cannot accept that non-heteronormative individuals are entitled to choose a partner, while on the other hand depriving them of the benefits of the conventional social institution of marriage.
Petitioners: Marital status is a source of dignity and self-respect as a core member of the society.
The lack of protection for non-heteronormative couples (afforded by the institution of marriage) is sufficient in creating unconstitutionality because it is not based on intelligible differentia.
Defendants: Marriage can only happen between a biological man and a biological woman. The concept of non-heteronormative marriage is merely an urban elitist view.
By decriminalising homosexuality, the court necessarily contemplated homosexual couples to be in stable, marriage-like relationships.
The court will have to see whether the law has progressed enough to contemplate that the existence of binary gender is not necessary for the definition of marriage.
The Union government says non-heteronormative marriage is an elitist view but no data has been furnished to prove that.
The State cannot discriminate against an individual on the basis of characteristics over which the person has no control.
Special Marriage Act
Whether marriage is a legal or religio-cultural concept: The Special Marriage Act is an areligious or non-religious marriage-related legislation.
Terminology: Certain provisions can be amended to replace the terms ‘husband’ and ‘wife’ with ‘spouse’, and ‘male’ and ‘female’ with ‘person’.
Marriageable age:In cases of homosexual couples, the age will depend on what gender the person professes.
Degree of prohibited relationship:For same-sex couples, it could be determined through a harmonious interpretation of Parts I and Part II of the First Schedule of the Act.
Notice signifying the intention to marry: The thirty-day notice period to be given before marriage to a district marriage officer is a violation of decisional privacy.
Whether marriage is a legal or religio-cultural concept: The underlying meaning of marriage is understood from the perspective of personal laws.
Terminology:Even though certain sections of the Special Marriage Act use the term ‘person’, the legislative intent throughout is the recognition of marriage between a biological male and a biological female.
Terminology: There is no absolute concept of a man or a woman. It is a far more complex concept than a mere matter of genitalia.
Degree of prohibited relationship: If two men or two women are getting married, not just Part I but also Part II of the First Schedule under the Special Marriage Act would apply. This is also a tacit indication that the Special Marriage Act did not contemplate people of the same sex getting married.
Notice signifying the intention to marry: The thirty-day notice period is patriarchal and was added when women did not have agency.