SC refers petitions on same-sex marriage to Constitution bench
A three-judge bench observed: “It’s a matter important enough for us to invoke our authority under Article 145(3) and refer it to a constitution bench...it’s a seminal matter.”
New Delhi The Supreme Court on Monday decided that a batch of petitions demanding legal validation for same-sex marriages will be decided by a Constitution bench even as the Union government, while opposing the plea, said that the apex court now carries the “grave responsibility” of determining how society will be shaped in future.
A three-judge bench, led by Chief Justice of India (CJI) Dhananjaya Y Chandrachud, set down the matter for final arguments before a Constitution bench from April 18 after noting that the petitions involve the interplay between constitutional rights and specific legislative enactments, including the Special Marriage Act, 1954
Also Read: Same-sex marriage pleas mark an urgent moment
“Having regard to the conspectus of the matter and the statutory regime in question, we are of the considered view that it would be appropriate if the issues raised here are resolved by the bench of five judges of this court with due regard to Article 145(3) of the Constitution. Thus, we direct that hearing of this case be posted before a Constitution bench,” stated the court in its order. Article 145(3) lays down that the cases that involve a substantial question of law in the matter relating to the interpretation of the Constitution should be heard by at least five judges.
The three-judge bench, which also included justices PS Narasimha and JB Pardiwala, further observed: “It’s a matter important enough for us to invoke our authority under Article 145(3) and refer it to a constitution bench...it’s a seminal matter.”
Representing the Centre, solicitor general (SG) Tushar Mehta submitted that he has no objection to the matter being placed before a larger bench, but implored the court to give ample time to all those who want to argue the case, given the impact the court judgment will have.
“The petitioners’ side says they will take 36 hours to argue. My request to this court is that do not cut down on arguments of anybody. It is not between two parties. This is a judgment that is going to affect the society as a whole. So, don’t cut any arguments. The court is shouldering a grave responsibility as to how the society will develop henceforth,” Mehta told the bench.
On Sunday, the Centre had filed its affidavit in the case, arguing that legal validation of same-sex marital unions will cause “complete havoc” with the delicate balance of personal laws in the country and in accepted societal values, and that the legislative policy in India recognises marriage as a bond only between a biological man and a biological woman.
Also Read: Same-sex marriages will wreak havoc: Govt in SC
Opposing the bunch of petitions filed by same-sex couples and right activists, the Centre asserted that it is “impermissible” for the top court to change the entire legislative policy of the country that is deeply embedded in religious and societal norms, which would also trigger an “irreconcilable violence” to a large number of statutes defining “husband” as a biological man and “wife” as a biological woman.
During the proceedings on Monday, the SG told the bench that the State is not coming in the way of people’s right to same-sex relationships which has also been held to be lawful after the 2018 judgment in the Navtej Singh Johar case, but the right to love is completely different from a mechanism to give sanctity to social relationship.
“Granting sanctity or legal recognition is essentially a function of the State. Since there would be a wide range of issues arising out of such recognition and may render various statutory provisions otiose, it is only for the competent legislature to examine these issues...Take, for example, an adoption by a same-sex couple. It is for Parliament to examine what would be the psychological impact of a child who has seen either two men as parents or two women as parents and has not been reared by a father and a mother,” he said.
Justice Chandrachud was quick to retort: “Mr Solicitor, the adopted child of a lesbian couple or of a gay couple does not necessarily have to be lesbian only. The child may or may not be...”
Advocate Arundhati Katju, who appears for the petitioners, also made an intervention to object to Mehta’s submission, pointing out that there are many petitioners with adopted children before the court.
Senior advocates Abhishek Manu Singhvi, Neeraj Kishan Kaul, Mukul Rohatgi, KV Viswanathan and Menaka Guruswamy appeared for different petitioners in the matter, contending that the court will have to eventually read down the 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. They cited the 2018 judgment in the Johar case, besides alluding to the 2017 judgment in the right to privacy case which encapsulated sexual orientation as an aspect of privacy.
Mehta, however, refuted that the 2018 judgment lent any right to recognition of same-sex marriages, pointing out that the court clearly said that while an individual also has a right to a union under Article 21, “when we say union, we do not mean the union of marriage”.
The court then proceeded to fix the matter for a detailed hearing before the larger bench on April 18, asking all the parties to file their written submissions and additional arguments within two weeks.
The Delhi high court in July 2009 de-criminalised consensual homosexual acts in private by declaring as unconstitutional a part of Section 377 of the Indian Penal Code that criminalises unnatural sex. However, in December 2013, the Supreme Court set aside the HC verdict, holding it was for the legislature to take a call on the controversial provision.
The year 2017, however, proved to be a game changer when a nine-judge bench not only declared privacy to be a fundamental right but also adversely commented on the 2013 judgement that affirmed the validity of Section 377. The privacy judgement stressed that right to privacy and the protection of sexual orientation lie at the core of a bundle of fundamental rights guaranteed by the Constitution. A year later, a five-judge bench decriminalised gay sex between consenting adults, as it borrowed from the privacy ruling.
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. Taiwan is the only state in Asia to legalise same-sex marriage.
The court is currently seized of a clutch of 15 petitions demanding legal recognition for same-sex marriages. The petitioners, which included same-sex couples and right activists, have challenged the constitutionality of pertinent provisions of the Hindu Marriage Act, Foreign Marriage Act, and Special Marriage Act and other marriage laws on the grounds that they deny same sex couples the right to marry. Alternatively, the petitions have requested the top court to read these provisions broadly so as to include same-sex marriage.
Responding to these petitions, the Union law ministry in its affidavit on Sunday 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.
Similarly, the affidavit, drawn by advocates Kanu Agrawal and Gaurang Bhushan, underscored that a marriage cannot be compared with a consensual relationship between two adults of the same sex or a live-in relationship which the Supreme Court has recognised as valid and lawful.
“Living together as partners and having sexual relationship by same sex individuals (which is decriminalised now) is not comparable with the Indian family unit concept of a husband, a wife and children which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two – who are reared by the biological man as father and the biological woman as mother,” it said.