SC notice to Centre on pleas to recognise same-sex marriage
The Supreme Court on Friday sought the Union government’s response on a clutch of petitions demanding legal recognition to same sex marriages under the Special Marriage Act (SMA)
Four years after it decriminalised homosexuality between consenting adults affirming sexual autonomy as a basic right of individuals, the Supreme Court on Friday sought the Union government’s response on a clutch of petitions demanding legal recognition to same sex marriages under the Special Marriage Act (SMA), and requested attorney general R Venkataramani to assist in the matter.
A bench, headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud, issued notice to the Centre asking for a reply within four weeks on the petitions which have also sought statutory recognition for the members of the LGTBQ+ community to marry the person of their choice.
Even as a bunch of cases on this issue remains pending before different high courts, the bench was persuaded to admit the matter in view of a statement made by the Centre recently before the Kerala high court that the ministry concerned was taking steps to get all similar cases transferred to the Supreme Court.
“Issue notice, returnable in four weeks. Notice shall also be issued to the learned Attorney General,” the bench, which also comprised justice Hima Kohli, said in its brief order.
According to global think tank Council of Foreign Relations, same sex marriages are legal in at least 30 countries, including the United States, Australia, Canada and France.
While issuing the notice, the court took note of the arguments made by petitioners’ lawyers, senior counsel Neeraj Kishan Kaul, Mukul Rohatgi and Maneka Guruswamy, that the issue needs an authoritative determination by the highest court of the land, which has guided the jurisprudence on the subject through its landmark judgments decriminalising homosexuality and granting privy a status of fundamental right.
The lawyers pointed out that incidentally, both the judgments had justice Chandrachud as one of the authors.
“These people have valuable constitutional rights. Various proceedings are at various stages before different high courts, prolonging their attainment of the rights so affirmatively highlighted by my lordship’s judgments in Navtej Singh Johar (decriminalising homosexuality) and Puttaswamy (privacy),” Kaul told the bench, as he opened the arguments on behalf of Supriyo Chakraborty and Abhay Dang. Chakraborty and Dang are two gay men living in Hyderabad, who have asserted in their petition that the right to marry a person of one’s choice should extend to LGBTQ+ citizens as well.
On his part, Rohatgi, appearing for Parth Phiroze Mehrotra and Uday Raj Anand, implored the bench the add a sequel to the apex court’s previuos judgments ratifying the need of the laws to respect personal liberty in matters of who people want to be with.
“These are live issues. People are getting older. Issues like succession, inheritance, organ donation etc are in limbo. We have made sure that the case is not argued on the basis of religion and that’s why we have asked for a recognition under the Special Marriage Act. This law does not say that the that union had to be between A and B. It is too important a matter to brook any delay,” Rohatgi argued.
Guruswamy, also representing one of these petitioners, complained that a couple cannot protect the family, and matters like adoption, opening a joint bank account or admission of children remain uncertain on account of failure of the law to recognise same sex unions.
In their petition filed through Karanjawala & Co, Mehrotra and Anand said they have been in a relationship for 17 years. The petitions added they are presently raising two children together, but since they cannot legally solemnize their marriage, they cannot have a legal relationship of parent and child with both their children. They pray that the Special Marriage Act, which was meant to be a secular legislation for institution of marriage, be made gender-neutral by reading down any gender or sexuality-based restrictions.
In its affidavit filed before the Delhi high court in 2021 in a similar case, the Union government strongly opposed the validation of same-sex marital unions, underlining that a marriage in India can be recognised only if it is between a “biological man” and a “biological woman” capable of producing children.
The government said any interference by a court in the marital statute based on personal laws will create “havoc” in society and will run afoul of the intent of Parliament in framing the laws. It said a fundamental right cannot be an “untrammeled right” and cannot override other constitutional principles.
It had also opposed a plea for live-streaming of the proceedings through an affidavit in May 2021, contending that the matter is “neither of national importance nor has it affected the majority of population,” and that the purpose of the plea was to get an “unnecessary hype”. But the government had to withdraw this affidavit after the high court took umbrage at the language used in the affidavit.
Before the Kerala high court where a petition for the legal recognition of same sex marriage was filed in 2020, the Centre said recently that it was taking steps to get all cases on the subject transferred to the Supreme Court.
In its 2018 judgment, the top court decriminalised homosexuality but did not get into civil rights issues. As a consequence, same-sex relationships are legal but civil rights such as marriage, inheritance or adoption, are not guaranteed to the lesbian, gay, bisexual, transgender, queer and intersex community.