Time To Update Laws: SC On Legalisation Of Same-Sex Marriage In India

On April 18, the Supreme Court of India started hearing a plea regarding the legalisation of same-sex marriages in India. This comes four years after the decriminalisation of section 377 of the Indian Penal Code (IPC).

A bench of five judges - Justice PS Narasimha, CJI DY Chandrachud, Justice Hima Kohli, Justice SK Kaul and Justice S Ravindra Bhat, was hearing the petition. On behalf of the Centre, Solicitor General (SG) Tushar Mehta is fighting the case. On March 13, he said that he had no objection if a larger bench of the apex court would hear the case.

Senior Advocate Mukul Rohatgi has been contesting in front of the bench in favour of legalising same-sex marriages in India.

Centre Is Against Legalisation Of Same-Sex Marriages In India

In the morning session, the Centre raised a concern and said only parliament has the right to take a decision in this matter. SG Mehta asked the bench to grant him time to confirm with the government about the extent to which it would participate.

On the other hand, CJI Justice Chandrachud said that the apex court has the right to decide how the hearing would proceed and who would take a decision on the matter.

Mehta argued that Hindu Marriage Act has been the code of conduct and must be considered in this matter too. However, the apex court asked him not to talk about personal laws when the bench was hearing a case that would impact everyone, irrespective of their religion.

CJI also said that in modern times, there is no ‘absolute’ definition of a ‘man’ or ‘woman’. Therefore, he dismissed Mehta’s argument about biological identities.

LGBTQ+ Inequalities Highlighted

Rohatgi, while speaking on behalf of petitioners, said that the LGBTQ+ community is denied basic rights to have bank accounts. “Marriage is required for the same-sex couple to face the togetherness,” added petitioners.

Rohatgi argued it was painful for petitioners and people from the queer communities to hear that the central government called same-sex marriage an ‘urban elitist concept.’ He added that State is not willing to give recognition to relationships other than those between heterogeneous couples.

He argued before the bench, “The expression sex is not limited to the biological sex of male or female but intended to include people who consider themselves neither.” He further added that recognition of one’s gender identity must lie under the fundamental right to dignity.

“Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of an individual,” said Rohatgi. On behalf of the petitioners, he said homosexual couples deserve the same rights as any other citizen of this country. This includes the right to marriage.

Rohatgi said that people from the LGBTQ+ community are not perceived as criminals, but they are still perceived as not good people. They are considered unworthy of standing from shoulder to shoulder in public.

He argued, “When you deny me the right of marriage, you deny me citizenship. If you deny me citizenship, you are saying you're no good, you're not equal to a citizen under the preamble so you stay where you are.”

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Day 2 Arguments

An affidavit was filed on behalf of the Centre seeking the involvement of all states as the decision would affect everyone. Rohatgi said he would deal with the affidavit as petitioners have challenged a central law as it was violating the fundamental rights of the LGBTQ+ community.

"We want to get our real rights where day-to-day things are involved - Gratuity Act, Pension Act, Juvenile Justice Act- it provides for adoption- you can't adopt unless married. The effect of a declaration of marriage must flow to secular parts such as gratuity, pension, adoption etc,” he added.

He also requested the court to make amendments to the Special Marriage Act (SMA). Rohatgi’s appeal to the court was to remove ‘husband’ and ‘wife’, wherever mentioned, and change them to a gender-neutral term like ‘spouse’.

He said that if the law and the state recognise same-sex marriages, it would help to end the stigma. “We may be a minuscule minority but the same rights, we are entitled to the same declaration,” he argued on behalf of the queer community. He said if marriages are good for society, they should be good for people belonging to the LGBTQ+ spectrum.

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"Nobody can deny full and equal citizenship- it can't be sans marriage, sans family, sans the respect of marriage, and we'll forever be treated as those people….I am not invoking a new basis. The basis already exists. It's already the law of the land. But it stopped at decriminalization because that was the issue then,” Rohatgi said.

He also added, "I want to walk into a space with my partner knowing the law and State recognise this union, so no one can stigmatise it."

When Advocate Singhvi spoke about discriminatory exclusion of LGBTQ+ folks based on sex and sexual orientation. CJI Justice Chandrachud observed, "The State cannot discriminate against an individual on the basis of a characteristic over which a person has no control." He also said that this argument stands true against the Centre's remark on same-sex marriage being an urban and elitist concept. "Something which is innate cannot have a class bias."

Singhvi also argued that the principle of equality cannot be trumped by reference to societal values. He added, "Freedom of expression includes the freedom or the right to express one's gender identity in all its manifestations."

He added, "Adoption, surrogacy, interstate succession, tax exemption, tax deductions- it simply requires marriage- compassionate government appointments...this is only illustrative, not exhaustive." On the contrary, CJI Justice Chandrachud said, even if a couple is in a homosexual relationship, they can still adopt. "So the argument that this will create a psychological impact on the child is belied by the fact that today as the law stands, it's open," he added.

Day 3 Arguments

On the third day of hearing, CJI DY Chandrachud asked lawyers to finish arguments by 4.00 PM today. He said that the matter has been stretched for three days now. He mentioned further delay in dates would only welcome more delays. Advocate Abhishek Singhvi started his arguments. He pointed out that if a particular paradigm applies to heterosexual group, lordships would not find it discriminatory not to apply same to homosexual groups.

“Once we have crossed that bridge (decriminalising gay sex) then the next question is as to whether our statute can therefore recognise not just marriage-like relationships but the relationship of marriage,” the bench noted. “This requires us to redefine perhaps the evolving notion of marriage," it further observed.

CJI DY Chandrachud also observed that same-sex couples are seeking the same benefits of marriage that heterosexual couples have.

Day 4 Arguments

During the hearing in the Supreme Court, Advocate Menaka Guruswamy said that the Centre cannot call it a matter of parliament when fundamental rights of a community are at stake. She further said, "We the people gave ourselves the constitution." Adding, she said, "Since our fundamental rights are part of the basic structure and this is what the 50 years of Keshavananda Bharathi case was all about and these 50 years were of LGBTQIA as well."

Guruswamy also added that certain basic rights can't be subjected to whims and vagaries of eighter the legislature or the majority. Before this, CJI Justice Chandrachud argues that the concluding part of the judgement would ask the Parliament to draft a bill or law on privacy. He also said that matters that were raised in the petition to legalise same-sex marriages in India also fall within Parliament's domain.

Day 5 Arguments

On April 27, the Union Government told the SC that legalisation same-sex marriages in India will destroy the legislative intent to permit the union of a man and a woman under the Special Marriage Act.

Solicitor General Tushar Mehta argued in that court that if the bench was inclined to recognise same-sex marriage, it would have to taken into account 72 different categories of sexual orientations. He further added, "Right to marry does not include the right to complet the state to create a new definition of marriage."

Earlier the Centre argued that same-sex marriages cannot be compared to an Indian family unit comprising a husband, a wife and children.

Day 6 Arguments

SG Tushar Mehta presented many arguments in front of the bench. He asked who would be the wife in a gay couple marriage, if a spouse dies in a same-sex marriage, who would be the widow or widower, who would be the father or mother in case of adoption of a child, if custody goes to the mother, wo would be the mother in a same-sex marriage, etc. He was trying to argue if the SC legalises same-sex marriages in India, it would call upon ammending several other laws related to marriage and family. Hence, he said that the decision must be left to the Parliament.

Mehta also said that move for rights of the LGBTQ+ community only started two or three decades ago, therefore, there is no data about how such relationships can affect children or how many kids have been adopted by homosexual couples. "The first or second generation is here," he added.

On the other hand, Senior Advocate KV Vishwanathan argued that there are many heterosexual couples who can't procreate or opt out of it. If they can get married, why can't the same-sex couples?

After hearing today's arguments, the SC said, "It is time to update the laws."