Will India recognise same-sex marriage? Supreme Court to decide today

The Supreme Court is set to deliver its verdict on a clutch of petitions demanding legal recognition for same-sex marriages on Tuesday, a ruling that would map out India’s jurisprudential acknowledgment of marriage equality and the realisation of rights that may emerge from such endorsement by the highest court of the land.

Following a marathon hearing in March and April that lasted ten days of intense arguments from both sides, a five-judge bench had on May 11 reserved its verdict in a batch of over 20 petitions that have implored the judiciary to step in owing to the alleged failure of the executive to take the lead and grant the same-sex couples equality with heterosexual couples in matters of marriage and incidents of a marriage, including adoption, succession, inheritance, divorce, among others.

The court has clarified that the remit of the proceedings would confine to legal validation of same-sex marriage within the fold of the Special Marriage Act (SMA).

The Constitution bench in the Supreme Court is headed by Chief Justice of India Dhananjaya Y Chandrachud and also comprises justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha.

The issue of same-sex marriage before the Supreme Court presents yet another legal conundrum, involving sexual and decisional autonomy on one hand and competing interests in a society as diverse as ours on the other.

The intricate mix of personal laws in the country, coupled with traditional religious notions of propriety and customs, call for the Supreme Court to strike a balance between constitutional rights forbidding discrimination based on gender, status, caste or creed, and the separation of power where Parliament is endowed with the authority to make laws and grant legal recognition to unions.

While the Constitution, since its inception, has acted as a guiding light in harmonising competing interests and valuing individual autonomy,

The petitioners’ arguments:

The court began hearing the case on April 18 after turning down the Union government’s objections against the judicial determination of the issue. While the Centre maintained that it is exclusively for the legislature to grant legal recognition to a social institution and that the court must first seek the views of all states, the court went ahead with the matter saying it will adjudge the issue in a “restricted arena” of granting validation to same-sex marriages by reading down or interpreting relevant provisions of the Special Mariage Act (SMA).

The petitioners before the top court included same-sex couples, rights activists, social workers and organisations. They challenged the constitutionality of a raft of provisions of the Special Marriage Act, Hindu Marriage Act, Foreign Marriage Act and other marriage laws on the ground that they deny same- sex couples the right to marry under the existing legal framework. Alternatively, the petitions have requested the top court to read these provisions broadly so as to include same-sex marriage.

They contended that the court would have to eventually read down the SMA and other statutes to recognise marriage as a union independent of gender and sexual identity or strike down the legal provisions that uses the terms ‘men’ and ‘women’ for validating a marriage.

The petitioners cited the 2018 judgment in the Navtej Johar case which decriminalised sexuality and put sexual autonomy on a high pedestal, besides harping upon the 2017 nine-judge bench judgment in the right to privacy case which encapsulated sexual orientation as an aspect of privacy.

The petitioners, through senior advocates Mukul Rohatgi, Abhishek Manu Singhvi, Raju Ramachandran, Anand Grover, KV Viswanathan, Geeta Luthra, Saurabh Kirpal and Menaka Guruswamy, among others, stressed on the equality right of the LBBTQIA+ to get State’s recognition of their unions. They submitted that same-sex marriages can be accorded legal recognition under the Special Marriage Act (SMA) to grant dignity to their unions, besides ascertaining the community’s access to social security and other welfare benefits.

The petitioner side presented a spectrum of views with respect to the contours of the adjudication as the hearing progressed between April and May. While some of them stressed that the court must look into the personal laws as well for a holistic view of the matter and to ensure that the legal recognition benefits people across religions, some others approved of an incremental approach where a declaration on the validity of a union along with an array of secular rights related to banking, insurance, pension and adoption could suffice for the time being. Another group emphasised that some administrative tweaking in a few circulars may not be enough because granting meaningful rights to same-sex couples would necessarily entail changes in the law. They added that in spite of the government’s offer, the moot question looms large why same-sex couples should continue facing discrimination in recognition of their marital status and why they should settle for anything else.

Most of the petitioners attacked the constitutional vires of relevant provisions in the SMA to the extent that it does not recognise marriages between LGBTQIA+ couples. They implored the bench to substitute terms like “man”, “woman”, “husband” and “wife” under the SMA with gender-neutral terms such as “person” and “spouse”.

Some of the petitions have also challenged the validity of a legal requirement under the SMA (Sections 5 to 8) to issue a 30-day public notice inviting objections to an intended marriage, terming the provision patriarchal and an apparent invasion of privacy and right to marry a person of one’s own choice.

The Union government’s stand:

The Union government has maintained throughout the proceedings that legislative policy and compelling state interest validate only a heterogenous institution of marriage between a biological man and a biological woman, while also attacking the petitioners for propagating an “urban elitist concept”.

Legal validation of same-sex marital unions will cause a “complete havoc” with the delicate balance of personal laws in the country and in accepted societal values, the government told the Supreme Court in an affidavit filed in March.

It has maintained that Parliament has designed and framed the marriage laws in the country to recognise only the union of a man and a woman to be capable of legal sanction, and thereby claim legal and statutory rights and consequences.

“This definition is socially, culturally and legally ingrained into the very idea and concept of marriage and ought not to be disturbed or diluted by judicial interpretation…Any other interpretation will make all statutory provisions unworkable apart from being completely contrary to the consistent legislative policy which is based upon the considered opinions of law makers, based on cultural ethos and societal values in each country,” it said.

According to the Centre, a marriage cannot be viewed as merely a concept within the domain of privacy of an individual when a formal recognition of such human relationships has many statutory and other consequences on couples, as well as their children, under various legislative enactments, covering issues such as divorce, maintenance, succession, adoption and inheritance.

During the arguments, it opposed the plea for legal recognition, arguing that granting legal recognition to a union is only for Parliament to decide though there are no curbs on having homosexual relations or living together as a couple.

Even as it agreed to set up an inter-ministerial committee, headed by the cabinet secretary, to examine the “administrative steps” that the Centre can consider for ensuring certain benefits for the same-sex couples even in absence of a legal recognition of marriage, the government urged the Constitution bench to refrain from issuing any declaration – either of acceptance of any right for same-sex couples or acceptance of the very relationship.

Leading the arguments on behalf of the Centre, solicitor general Tushar Mehta said that the fallout of any declaration will be incapable of being foreseen or controlled by the court and therefore, the bench may not use its discretion to declare any right.

According to Mehta, any alteration of words in the SMA will also have an unforeseen fallout on a raft of provisions in other statutes, besides impacting personal laws even though the constitution bench had begun the hearing of the case on a premise that it would not go into the aspects of personal laws.

As the hearing drew to a close on May 11, the Centre also apprised the bench that of the seven states that replied to the Union government’s letter of last month seeking their views on the legal recognition of same-sex marriages, three – Rajasthan, Assam and Andhra Pradesh — have opposed the idea of ratification of such unions, citing the legislature’s prerogative to make laws and public opinion across religious faiths. The others – Uttar Pradesh, Maharashtra, Manipur and Sikkim – sought more time to formulate their views.

The contours of SC decision:

The five-judge bench, during the 10-day hearing, deliberated upon several possibilities – tweaking certain words in the SMA to make the law gender-neutral; issuing a declaration on affirming same-sex marriages and leaving the rest to the government; granting constitutional status to right to marry; passing certain specific directions on implementation of its declaration.

The five-judge bench frequently recalled its judgments that underlined the spirit of the Indian Constitution and the judiciary’s role in securing to all people aspirations enshrined under it.

The Supreme Court, in Asha Ranjan Vs State of Bihar, (2017) said that that the right to choose a partner in life is founded on individual choice under Article 19. “Choice of woman in choosing her partner in life is a legitimate constitutional right. It is founded on individual choice that is recognised in the Constitution under Article 19, and such a right is not expected to succumb to the concept of class honour or group thinking,” it noted.

In Shafin Jahan Vs Asokan KM & Ors, (2018), the top court has categorically held that the right to marry a person of one’s choice is protected under Article 21. “Choices of faith and belief as indeed choices in matters of marriage lie within an area where individual autonomy is supreme. The law prescribes conditions for a valid marriage. It provides remedies when relationships run aground. Neither the State nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters,” it held.

Again, in Common Cause Vs Union of India (2018), a constitutional bench of the Supreme Court elucidated the role of freedom of choice in an individual’s life. “Our autonomy as persons is founded on the ability to decide: on what to wear and how to dress, on what to eat and on the food that we share, on when to speak and what we speak, on the right to believe or not to believe, on whom to love and whom to partner, and to freely decide on innumerable matters of consequence and detail to our daily lives,” it highlighted.

Most recently, in Laxmibai Chandaragi B & Anr Vs State of Karnataka & Ors, (2021), the apex court held that the choice of an individual to marry a person of their choice is an inextricable part of dignity, “for dignity cannot be thought of where there is erosion of choice.”

Last year, the Supreme Court took yet another leap of transformative constitutionalism. In Deepika Singh Vs Central Administrative Tribunal (2022), the top court recognised that family units may manifest in atypical ways and has upheld the need to legally recognise these “non-traditional manifestations of familial relationships”.

According to global think tank Council of Foreign Relations, same-sex marriages are legal in at least 30 countries, including the US, Australia, Canada and France. Majority of countries changed the laws through legislation.

If the petitioners succeed, India will become only the third country in Asia to allow same-sex unions, a mere five years after the court decriminalised homosexuality. Either way, the Tuesday verdict is set to mark a watershed moment in chartering a roadmap for future rights-based issues and providing a vision to the momentous civil liberties adjudication in India.