Marriage Equality Hearing: 'Leave It To Parliament,' State Tells Supreme Court
The submissions touch upon Special Marriage Act, natal family violence, among others.
advertisement
The five-judge Constitution bench of the Supreme Court, headed by Chief Justice of India DY Chandrachud, continued hearing the marriage equality petitions on Wednesday, 26 April. Justice SK Kaul and Justice Ravindra Bhat, who were indisposed due to COVID, joined the bench virtually for the hearings.
Day 5 of the hearing saw the petitioners closing their arguments, and Solicitor General Tushar Mehta opening his submissions on behalf of the state. He once again urged the court to "leave the issue to the parliament."
As many as 20 petitions have been filed seeking marriage equality so far
At least 51 of the petitioners are queer people
The petitioners submitted that the right to marriage is not only a question of dignity but also ensures "a bouquet of rights" to queer people
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)
Key Highlights From the Case
The Bar Council of India, on 23 April, passed a resolution opposing marriage equality, stating that the issue should be dealt exclusively through the legislative process owing to the country's diverse socio-religious landscape.
All the district bar associations of Delhi followed suit and passed similar resolutions opposing same-sex marriage, on 24 April.
On the issue of adoption by same-sex couples, CJI Chandrachud made a verbal observation on the domestic violence that exists within heterosexual families and the impact it would have on a child.
He also observed that there is no data from the government that "same-sex marriage is urban or something."
'Married in US, but Not Recognised in India'
Senior Advocate Geeta Luthra opens the arguments saying that the petitioners she represents are legally married in the United States, but that "it is unjust that their union is not recognised in India."
She adds that their rights are also not recognised here. "During COVID, visas were granted to spouses of Indian citizens. But not being recognised, petitioner 2 didn't get a visa. So, while they're a married couple in US, they could not come to India during COVID," she contends.
Luthra adds that her petitioners sought to get their marriage registered under the Foreign Marriage Act in India, pointing out that the Act applies even when one of the two persons in a couple is an Indian national.
Anand Grover on 'Intimate Associations'
Senior Advocate Anand Grover, who represents two petitioners, argued on the right to 'intimate association', which is guaranteed in the 14th, 19th, and 1st Amendments in the United States.
Under the right to intimate association in the US, individuals are entitled to maintain close familial, romantic, or other private associations, free from state interference. Such rights include the right to marriage, the rearing of children, and the right to habitate with relatives.
Grover suggested that "this right of intimate association can be read into Article 21 (of the Indian Constitution). Apart from privacy, autonomy, and dignity, this can also be read into Article 21."
'Want Marriage Equality, Not Just Same-Sex Marriage'
Appearing for Dr Akkai Padmashali, the second transgender petitioner in the case, Senior Advocate Jayna Kothari says that the issue isn't limited to same-sex marriage, but marriage equality.
"This court held that it is not only two genders – not only male or female – but male, female, or transgender persons who could identify as any, even without medical reassignment. The purpose of granting this right to self-determine one's gender identity is to get legal recognition to a whole bunch of other rights, including the right to marry," she argues.
Kothari further says that the right of transgender persons to marry was also specifically recognised in the NALSA judgment of 2014.
Kothari also argues that the right to family must be recognised under right to life of Article 21.
'Marriage a Matter of Conscience': Menaka Guruswamy
Representing Aditi Anand and Others and the Delhi Commission for Protection of Child Rights (DCPCR), senior advocate Menaka Guruswamy makes five major submissions before the Supreme Court:
India's parliament, unlike England, is a constrained parliamentary form. In India, the parliament is constrained – by the Constitution, by the judges. So, to say, this [marriage equality] is a matter for the parliament is unknown to the Indian parliamentary form, and it imposes a British parliamentary form.
Judicial review is part of the basic structure. Dr Ambedkar says that Article 32 is soul of India's Constitution. If we are speaking on behalf of millions of Indians, our rights under Article 32 are being violated. So, the government can't say that we (a minority) cannot come to court and say this is a matter for the parliament.
The Union, in its counter, said that it has a legitimate 'state interest', as in cases of national security. Nowhere in these cases does the state have this interest.
Marriage offers a bouquet of rights, a table of benefits – including gratuity, Provident Fund, pension. They are all premised on the understanding of a spousal relationship ascribed by marriage. We are excluded.
Marriage is a matter of conscience under Article 25 of the Constitution.
Responding to her first submission, CJI Chandrachud says: "You cannot dispute that parliament has the powers to interfere with the canvas covered by these petitions. Entry 5 of the concurrent list – it specially covers marriage and divorce. So, comparing this with the British parliament may not be correct."
Guruswamy, however, adds, "We are only asking for a workable interpretation of the Special Marriage Act. The parliament cannot be the reason to exclude us from this guarantee under the constitution."
'If We Read Into SMA, Will Have Changes in Personal Law'
Justice Ravindra Bhat said, "….If we read into the SMA, there will have to be changes in other personal laws as well. There is no shying away from this."
"How many times are we to play follow up? Where does it stop? Is this our job? Ultimately that's the question we come back to."
'Parliament Will Not Enact Anything,' Says SC Bench
"…we don't believe Parliament is going to enact anything….there may be unheard voices who may want to preserve their religious aspect," observed the Supreme Court bench, led by Chief Justice of India (CJI).
The bench is deliberating on whether it should confine the case to just SMA interpretation on the aspects of marriage.
Have To Indulge In Interpretative Exercise: Saurabh Kirpal
Advocate Saurabh Kirpal said that laws have to be continually revisited to ensure that everyone lives with basic rights.
"We are not indulging in interpretive exercise to understand what lawmakers in 1954 thought… We don't have doctrine of original intent in our constitution. We have to ensure it's a living document," advocate Kirpal added.
'If Marriage Is Sacrosanct, Why Is Divorce Allowed?'
Advocate Saurabh Kirpal said that if "marriage is sacrosanct in Hindu Law, then by that logic divorce should be disallowed" – which will help preserve "this institution of marriage," the advocate pointed out.
'Marriage Can Shield Queer People From Natal Family Violence': Vrinda Grover
"There seems to be an assumption that families would necessarily be supported. But the primary source of violence is the natal family in these situations," submitted senior advocate Vrinda Grover.
She added that people should be allowed to nominate a chosen-family member as a 'next of kin.'
"A study says that several transgender persons who went home due to COVID were subjected to all kinds of violence from families. That is why this form of chosen family becomes important," she added.
Heightened Protections Given to Women: Karuna Nundy
"Two doctrinal principles to be applied for a minimal reading in. First, husband and wife should not be collapsed into one category...should not be one category 'spouse'. This is because of heightened protections given to women," argued senior advocate Karuna Nundy, suggesting that 'third gender spouse' or 'non-binary spouse' may be used.
Cannot Decide on All Questions Today: Katju
Advocate Arundhati Katju begins her argument.
"We also seek a negative declaration binding the state to not deny rights and obligations to married couples whose marriage has been solemnised under the SMA, only on ground of sexual orientation or gender identity," the advocate added.
'We Are Also Part of Community': Advocate Katju
Advocate Amritananda Chakravorty begins her submission by stating that restricting joint adoption "only to heterosexual couples is discriminatory."
"They have the option to marry, but LGBTQ couples don't. Discrimination based on sexual orientation...," she said.
"Centre says this would play havoc with personal laws. But we are also part of our community and our society. Our parents also long to see the day we get married. Let us be blessed just as any other couple," added advocate Katju.
On the question of having children, advocate Nundy said:
"It is true that not all couples choose to procreate. But as a married couple, having a child is part of human experience... Something that [queer] couples may long for," she said.
'Idea of Innateness'
Advocate Shivam Singh argues about "idea of innateness" and says that "if something is so innate to a person, it is unconstitutional for the state to utilise that and discriminate against the person."
"...sexual orientation and gender are such innate characteristics of a person. To discriminate on the basis of this will fall foul of Article 14... The grant of positive rights over queer community is not a zero sum game.. the only argument that the Centre can present is that it runs against social morality," he adds.
'Family Values Won't Get Affected': Jaideep Gupa
Senior Advocate Jaideep Gupta, appearing for intervenor Queer Collective of Indian Institute of Science, in his submissions, says:
"It is a misconception to say family values Indians cherish will be affected. It is because of these family values that they wish to get married. All values we cherish will come into effect."
'I Reiterate...Leave It To Parliament': SG Tushar Mehta
Opening his submissions for the state, Solicitor General Tushar Mehta once again urges the Supreme Court to leave the matter of marriage equality to the parliament and state legislatures.
"The lordships are dealing with a complex subject which has a social impact. Consider giving this to the parliament. There are several ramifications on other statues and society, which would need a debate in the society, in various state legislatures, civil society groups. At the outset, lordships can save the rest of the exercise and leave it to the parliament," he pleads.
What else did he argue?
The petitioners are seeking the right to get the socio-legal recognition of marriage. But what constitutes a marriage? Between whom? And who should take a call on this?
All laws so far define man and woman in a conventional sense. This debate is happening before lordships for the first time. Should it not go to the parliament or the state legislatures? Your lordships may not be in a position to consider a variety of situations... there will be a variety of problems only the parliament can take care of.
There is no value judgement or stigma attached in this case. Navtej gives the right of choice, privacy, autonomy, and sexual preference.
The right to marry does not include the right to compel the state to include a new definition of marriage. The parliament can do this; it's not an absolute right.
The moment any right is recognised, it is also regulated. There is no absolute right to marry even among heterosexual couples. Law prescribes when to marry and how many times one can marry [at the same time]. There are prohibited relationships; the law decides whom not to marry, and the law regulates the grounds of judicial separation. If the right to marriage is given to them, how will it be regulated?
We have definitions of LGBTQ+, but we have not tried to know what the '+' means. This is the core of the problem that the judiciary would face. There are 72 shades or variations. How will your lordships deal with these varieties of situation?
Even the prayers of the petitioners are extremely vague. Societal acceptance is needed for recognition of an union and this has to be through the parliament. And if it is done by the court, then it is detrimental to the LGBTQI, since you are forcing something against the will of the people. We cannot forget the historical background which led to the institution of marriage.
'Don't Rely on Dobbs, It's a Wrong Judgment': CJI
To highlight judicial powers, Solicitor General Tushar Mehta relied on Dobbs v. Jackson Women's Health Organization in the United States – in which the US Supreme Court held that the constitution does not confer a right to abortion.
CJI Chandrachud, however, found fault with this, saying:
- Access to all paywalled content on site
- Ad-free experience across The Quint
- Early previews of our Special Projects
Published: 25 Apr 2023,11:58 AM IST