On the last day of hearings on the marriage equality matter, petitioners made their concluding submissions. Senior advocate Dr Abhishek Manu Singhvi cautioned against ‘separate but equal’ treatment of non-heterosexual couples, senior Advocate Geeta Luthra asserted that “vague, ephemeral social morals” that are not on par with constitutional values are misplaced, and senior advocate Raju Ramachandran exhorted the court to “walk the full mile and not stop at a constitutional declaration”.
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ON Thursday, 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 continued hearing a batch of petitions in Supriyo@Supriya Chakraborty versus Union of India & Ors, on the issue of whether gender-neutral situations can be accommodated in the Special Marriage Act, 1954 (SMA)
Only exclusionary provisions challenged
Senior advocate Dr Abhishek Manu Singhvi, on behalf of the petitioners, continued his concluding remarks from yesterday and laid emphasis on the specific area of the challenge of the petitions. He asserted that the petitions challenge the exclusionary provisions of the law that discriminate against the non-heterosexual community pertaining to their right to marry.
Dr Singhvi submitted that, except for SMA and The Indian Succession Act, 1925, the petitioners are not seeking the court’s interpretation of gendered laws or protection provisions, including laws relating to rape and sexual violence. He further clarified that the petitioners are assailing only those parts of the SMA that require a constitutionally compliant reading on the grounds of discrimination against non-heterosexual couples.
Further, Dr Singhvi submitted that a ‘civil union’ is not a solution or an equal alternative to marriage. The petitioners seek access and equality in marriage, he contended. Dr Singhvi stated that the respondents’ denial of recognition of the right to marry for non-heterosexual couples reinforces the unconstitutional doctrine of ‘separate but equal’.
Constitutional declaration not enough
Senior advocate Raju Ramachandran, for the petitioners, emphasised the consequences of a possible constitutional declaration by the court that leaves the legislature to enact laws on the right to marry non-heterosexual persons. Giving examples of such declarations in cases pertaining to triple talaq, transgender rights and data protection, Ramachandran asserted that such issues enjoyed the majority consensus in the legislature. He said that the LGBTQIA++ community, however, represents an unpopular minority across communities. With the court being a protector of such an unpopular minority, it should “walk the full mile and not stop at [a] constitutional declaration”, he submitted.
According to Ramachandran, a constitutional declaration will be “illusory”, thereby necessitating a protocol with protection under the SMA or constitutional rights. “Unless vulnerable couples are protected, we would not be getting any relief,” he stated.
Further, Ramachandran provided three caveats to his prayer of reading in the provisions of the SMA— firstly, wife-specific provisions in heterosexual marriages stand as they are; secondly, penal laws subjecting men and women are not subjected to any interpretation; thirdly, religious personal laws are not interfered with.
On the contention of the respondents that the institution of marriage is viewed by society as a man–woman union that cannot be touched, Ramachandran asserted that the test is whether such a traditional reading of marriage is discriminatory towards same-sex unions.
Positive obligation of the State
Senior advocate K.V. Viswanathan remarked on the positive obligation of the State to confer non-heterosexual couples the right to marry. He submitted that there is a corresponding obligation on the Union government to recognise non-heterosexual unions in a non-discriminatory manner. There cannot be discrimination even if such recognition is deemed a privilege, he added.
On Justice Bhat’s enquiry on how duty can be crystallised or located when it follows established rights, Viswanathan replied that when discrimination is based on an innate or core trait that a person is born with, the positive obligation of the State can be found. Further justifying the State’s duty, he gave the example of transgender rights to submit that the lack of workability does not hold back the conferring of the right to marry.
According to Viswanathan, the non-heterosexual community have an all-encompassing right to be put to the rigours of commitment to marry, as well as rights in divorce. Equal right to marry effectuates the right to live fully, which finds a positive obligation on the State to enact laws pertaining to it, he stated.
Precedence to constitutional morality
Senior advocate Geeta Luthra, again for the petitioners, focused on the precedence of constitutional morality over social morality to oppose the argument of social ethos relied on by the respondents. Luthra submitted that since our Constitution originated from compiling the best constitutions in the world, we cannot rely on our traditions that are not in tune with the constitutional values.
Luthra asserted that in view of the constitutional comity, constitutional morality should be held on a higher pedestal than social morality. According to Luthra, “vague, ephemeral social morals” that are not on par with constitutional values are misplaced.
Luthra prayed for the Bench to read in the SMA to include the constitutional right to marry and the right to have a family.
Worsening stigma if rights denied
Senior advocate Anand Grover, for the petitioners, emphasised the consequences on the LGBTQIA++ community if their equal right to marry is denied. According to Grover, the stigma that the British laws have attached to the non-heterosexual community continues with their right to marry. The situation for the LGBTQIA++ community is bound to worsen if the court denies them the right to marry, he asserted.
Grover submitted that the respondents oppose the equal right to marry since they are yet to come to terms with non-heterosexual sexuality. “Our sexuality is not different,” he said. He stated that under Section 19(1)(c) of the Constitution, the fundamental right to association manifests itself in marriage. He added, “Without fulfilling the right to marry, the stigma will continue”.
Grover relied on the obligations of the State under International Law and suggested that the SMA can be a conduit for conferring the equal right to marry— until the Parliament enacts the appropriate laws.
Studies on same-sex parenting
Senior advocate Dr Menaka Guruswamy, on behalf of the Delhi Commission for Protection of Child Rights, laid emphasis on multiple studies and constitutional courts in other countries that have expressed opinions on same-sex parenting and adoption. She stated that according to meta-studies around the world, no adverse psychological impact is found on children in same-sex households.
Dr Guruswamy highlighted that according to the reports, with sexuality developing at an early age, denial of equal rights is bound to psychologically impact young people. She also pointed out that studies show that children raised by same-sex couples are more socially developed and have better chances at economic outcomes than others.
Dr Guruswamy relied on a report by the Indian Psychiatrist Society, the largest society of mental health professionals in India consisting of 7,000 psychiatrists or specialists, that stated that discrimination against the LGBTQIA++ community leads to mental health issues. The reports emphasised the need to sensitise the family and the community, she stated.
Declaration with practical impact
Senior advocate Saurabh Kirpal prayed that a declaration of the court for a fundamental right to marry for non-heterosexual couples cannot be made in a vacuum, but should be formalised to have a practical impact. He specifically submitted that a declaration under Section 4 of the SMA should be carried into practice to ensure that the rights of non-heterosexual couples are equally met.
Kirpal emphasised that such a declaration will not become unworkable for heterosexual couples, and “it will not lead violence to SMA”. Rejecting the contention of the respondents that a declaration by the court is “unworkable”, Kirpal asserted that only sub-section (c) and (d) of Section 4 of the SMA need to be tweaked in a gender-neutral form.
Senior advocates Jayna Kothari, Vrinda Grover, Karuna Nundy and Arundhati Katju made concluding remarks in support of the petitions on the issue of whether gender-neutral situations can be accommodated in the Special Marriage Act, 1954 (SMA).
The matter has been reserved for judgment by the Constitution Bench.
