The five-judge Supreme Court bench hearing the petitions seeking marriage equality, on Tuesday, 18 April, said that it "would not touch personal laws" at this stage.
"Now that we've understood broadly the canvas of the matter, we can at this stage, steer clear of personal law. If we steer clear of personal law, perhaps that is one possible option..." observed Chief Justice of India DY Chandrachud, who is leading the bench comprising Justices SK Kaul, S Ravindra Bhat, PS Narasimha, and Hima Kohli.
Earlier in the day, opening the batch of pleas seeking marriage equality, senior counsel Mukul Rohatgi said:
"Criminality is now gone. The unnatural part is erased from our books. If our rights are identical as held by the state, we want to enjoy all rights and live a dignified life and not mere existence... with the concept of marriage and the concept of family."
Solicitor General Tushar Mehta, representing the Centre, however, sought an adjournment of the case, stating that "the subject your lordships are dealing with is the creation of a socio-legal relationship of marriage which is the domain of the competent legislature."
Rejecting the adjournment, the CJI said, "We'll reserve your preliminary objections after they have opened... Anything but adjournment."
'Want To Enjoy Full Extent of Our Rights'
Arguing for the petitioners, senior counsel Rohatgi argued:
"We are persons who are of the same sex. We have, according to us, the same rights under constitution as heterosexual group of society. Your lordships have held that. The only stumbling block on our equal rights was [Section] 377."
"If our rights are identical as held by the State, then we want to enjoy the full extent of our rights under Articles 14, 15, 19, and 21," he added.
What else did he say?
"We want privacy in our homes and not face stigma in public places. So, we desire the same institution between two people as is available to others – the concept of marriage and family. Because marriage and family is respected in our society."
"We want a declaration that we have a right to marry, that right will be recognised by the State, and will be registered under the Special Marriage Act. Once that happens, society will accept us. The stigma will only go once the state recognises it. That will be full and final assimilation."
"I want to say that your lordships may broadly read 'spouse' in place of 'man and woman' or 'husband and wife'."
"Concept of marriage has changed over the last 100 years. Earlier, we had child marriages, temporary marriages, a person could marry any number of times; that also changed."
"In Navtej, Sayara Bano, Puttaswamy, it was held that the court need not wait for legislative interference, and if it is brought to the court's notice that my fundamental rights are being restricted, the court's duty is to act."
"We are getting older. We also want respectability of marriage. Today, what is the position? These people – call them queer, gay – if they go to places, people look at them. That is a restriction, infringement of my right under Article 21."
Advocate Menaka Guruswamy, who had represented the LGBTQ petitioners in the Section 377 case as well, argued for the marriage equality petitioners, saying:
"Bank accounts, life insurance etc... everything is denied. I cannot buy a SCBA insurance for my family even though I am a SCBA member... rights are protected when you protect your relationships... day-to-day business of life is all these things and marriages gives a couple these bouquet of rights."
'The Two Unions Are Not Equal'
SG Tushar Mehta said that the case should not be argued in the court at all as "there are certain issues that are better left to the discretion of the Parliament."
Responding to the court's decision that it would not "get into personal laws," he argued:
"Today your lordships may not go into personal law but the window of personal law will open. Several windows have opened. On the lighter side, several windows have already opened and now they're trying to open the door. I'm saying that you'll have to ultimately open your entire house."
SG Mehta also argued that even in the Special Marriage Act, "the legislative intent throughout has been relationship between a biological male and a biological female."
CJI Chandrachud, however, interjected saying that the concepts of biological man and biological woman are not absolute. "It's not the question of what your genitals are. It's far more complex. So, even when Special Marriage Act says 'man and woman', the very notion of a man and a woman is not an absolute based on genitals," he added.
Senior advocate Rakesh Dwivedi, appearing for one of the parties opposing marriage equality, stated that "heterosexual union is responsible for the perpetuation and very existence of human race. Without it, society itself will not live. The other relationship exists merely because there is love etc – just one part of heterosexual union."
He further argued that "marriage amongst heterosexuals is not the gift of law. It has been existing since Rig Veda. Manusmriti continued it."
"The two unions [heterosexual and same-sex] are different, they're on different pedestals," he stated.
20 Petitions Seeking Marriage Equality
Ahead of the hearing, Ankita Khanna, one of the 52 petitioners in the case, tweeted that she has "unwavering faith in our Constitution."
"...we are aware that we are not alone. We stand on the shoulders of all those who fought for decriminalisation in 2018. We carry and represent the hopes and aspirations of millions of LGBTQIA+ people, allies and families, throughout this country."Ankita Khanna, in a tweet
As many as 20 petitions have been filed seeking marriage equality so far, and 51 of the petitioners are queer people. Over 100 lawyers are involved in the case – including Menaka Guruswamy and Arundhati Katju, who represented the LGBTQ petitioners in the Section 377 case.
On Tuesday morning, Katju tweeted a photo with her partner Guruswamy, saying: "Equality before the law, and the equal protection of the laws. #marriageequality"
'Urban, Elitist Views': Centre's Opposition to Pleas
The petitions were opposed by the central government in an application to the Supreme Court on Sunday, 16 April, which termed them "mere urban elitist views for the purpose of social acceptance."
The Centre argued that creating or recognising a new social institution like same-sex marriage should be a matter of legislative policy and determined by the appropriate legislature.
It further stated that the right to personal autonomy does not include a right to the recognition of same-sex marriage through judicial adjudication.
Conventional and universally accepted socio-legal relationships, like marriages, are "deeply rooted in the Indian social context and indeed is considered a sacrament in all branches of Hindu law. Even in Islam, though it is a contract, it is a sacred contract and a valid marriage is only between a biological male and a biological woman," the application read.
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