Right to marry does not include the right to compel the State to create a new definition of marriage: Union government on Day 5 of hearings

Solicitor General Tushar Mehta argued that the court should not continue to hear the petitions as the matter has profound social ramifications. He also claimed that the heart of the Special Marriage Act is the recognition of marriage between a conventional man and a conventional woman.

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"RIGHT to marry does not include the right to compel the State to create a new definition of marriage," contended Solicitor General of India Tushar Mehta on day 5 of the hearings on same-sex marriage petitions in the Supreme Court.

Tushar, on behalf of the Union government, opposing the recognition of marriage equality for same-sex couples, continued, "Parliament can do so [recognise same-sex marriage], but it is not an absolute right," .

Mehta reiterated his point from last week that the court is dealing with a complex issue having a "profound social impact".

He said, "Your Lordship can consider leaving all these questions for the Parliament for the reasoning that Your Lordship has read the right to choose sexual orientation in Navtej Singh Johar … based on one's sexual orientation [so] there cannot be [a question of] any discrimination… Right of personal autonomy and choice has also been recognised.

"The prayer before this court is the right to get the socio-legal recognition of marriage… The real question is who would take a call as to what constitutes a marriage between a particular class of people."

The 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 hearing 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.

According to Mehta, there are several ramifications of such a step, even if unintended, on various legislation which require to be debated within the civil society. He said, "All laws whether, it is criminal law or civil law … they define 'man' and 'woman' in the conventional sense. When this question is being debated … should it not go first to the Parliament or the state legislatures?"

He further said that the Union government is not doing a "value judgment" of what is good or bad for the community, and that is why there is no stigma attached to the issue.

Mehta said, "The Parliament has accepted [the LGBTQI+ community's] right of choice, their right of sexual preferences, their right to autonomy, and their right of privacy."

According to him, "There is no stigma because the legislative policy is very clear for the transgender person, where the 'transgender' is very widely defined to include all shades and spectrum of what we call 'LGBTQ+'."

Mehta gave an example from prior to 1955, when there was no recognition of marriage except for the societal acceptance of the union between heterosexual couples. He said, "Once it gained societal acceptance, in Hindus at least, it was codified in 1955 by way of the Hindu Marriage Act… Any right which was pre-existing without recognition by law is recognised and it is also regulated.

"There is no absolute right to marry even today between heterosexual couples…  A man has to be 21 and a woman has to be 18 years [old], meaning thereby that the law prescribes when to marry. Bigamy is prohibited, so the law prescribes how many times you can marry… There are prohibitions related to the degree of prohibited relationships meaning thereby, the law regulates whom not to marry."

Constraints faced by the court 

Mehta argued that there were certain constraints for the court vis-à-vis what the petitioners are seeking and which were consciously omitted by the legislature. First, the court cannot change the character of law. According to him, the character of law can only be examined by considering the entire architecture of law.

Second, the court cannot substitute legislative intent with its own reasoning.

Third, the court cannot read words of larger amplitude in place of words of smaller amplitude, such as the term 'person' instead of 'male' and 'female'. Even if the court undertakes to have an expansive understanding of the legislation to accommodate gender-neutral situations, it would have an unintended impact on heterosexual couples as the Special Marriage Act is intended to regulate marriage between heterosexual inter-caste couples, he submitted.

Lastly, the court cannot have an interpretation where the same statute is applied differently to different classes of persons. The distinction between these two classes cannot be reconciled, he said.

Further, he pointed out that even if the Parliament gives recognition to non-heteronormative marriages, it would be difficult to accommodate all gender identities across the spectrum. He said, "There are 72 shades and variations. That is why we write ++ (as in, 'LGBTQIA++') … If your Lordship were to give recognition to LGBTQIA++ which is an unidentified class of persons (referring to ++), and there are at least 160 provisions in different statutes, how are we able to reconcile with the different spectrum and shades?"

While referring to different categories of genders, Mehta submitted that the Parliament will have to take a humongous exercise as a matter of policy if it decides to give recognition to this unidentified class of persons.

No legislative prohibition on LGBTQIA++ to marry

Mehta clarified that the court is not dealing with a situation where there is a legislative prohibition on marriage. He said: "[The court] is not examining a prohibition against marriage… There is no prohibition amongst LGBTQIA++ community to marry." He added that all social institutions pre-dated the statutes and have only accepted marriage as an institution between heterosexual couples, as reflected in statutes today.

Union government criticised for relying on United States judgment banning abortion

Mehta then referred to several judgments to argue that the recognition of a new social institution must be left to the Parliament. But the court took exception when he referred to the judgment of the Supreme Court of United States in Dobbs versus Jackson Women's Health Organization (2022) which held that abortion is not a constitutionally protected right in the United States. Mehta was referring to the part where the court had observed that fundamental rights must be objectively and deeply rooted in a nation's history and tradition.

Mehta specifically referred to the concurring opinion of Justice Clarence Thomas, who noted that the United States' Supreme Court judgment in Obergefell versus Hodge (2015) on the recognition of same-sex marriage should be reconsidered.

The CJI said, "We have gone far beyond Dobbs in India. Dobbs represents a view of the Supreme Court of the United States that women have no bodily control over her own bodily integrity (sic). This theory has been debunked long back in our country."

Mehta clarified that he was only relying on Dobbs for the limited point of view that the issues concerning moral and social implications must be returned to the Parliament.

The court was not satisfied with Mehta's clarification, and said that despite relying on the specific reasoning, he should not have cited Dobbs.