New Delhi: The Supreme Court judgement that decriminalised homosexuality in India in 2018 did not just grant legal validation to relationships between consenting adults of the same gender, but also recognised that people of the same sex can be in a stable relationship, the top court observed Thursday.
During the hearing of a batch of petitions demanding legal backing to same-sex marriages, Chief Justice of India (CJI) D.Y. Chandrachud made the verbal observation when senior advocate Abhishek Manu Singhvi claimed that the underlying thrust of the Special Marriage Act (SMA) does not intend to exclude marriage between two persons of the same gender.
“When you decriminalise homosexuality, you also realise that these are not one-off relationships, these are also stable relationships,” the CJI said.
To hold that it is not a crime to be in a homosexual relationship is recognising that two people can be in a relationship not just in the physical sense, but in the emotional context, he further opined.
Since the first bridge was crossed with the Navtej Johar judgement, the CJI remarked that now the court has to ascertain whether the statute (SMA) can recognise not just a “marriage-like relationship, but (also) relationships (that are) like marriage.”
CJI Chandrachud is heading a five-judge bench which Tuesday commenced hearing on a set of petitions seeking legal recognition of marriage between same-sex couples. The other judges on the bench are justices Sanjay Kishan Kaul, Ravindra S. Bhat, Hima Kohli and P.S. Narasimha.
On the first day of the hearing, the bench had fixed the remit of the matter, saying it would steer clear from interfering in personal laws and would focus only on the secular marriage-related legislation – the SMA.
‘Concept of marriage an evolving dynamic’
Arguments advanced so far in the case have requested the bench to interpret SMA so that it is constitutionally compliant. But would the court go beyond its constitutional mandate in doing so was the question the bench delved into Thursday.
As per Singhvi, the court wouldn’t be crossing its mandate in doing so. He argued that the SMA does not prohibit same-sex marriage. His argument was to buttress the stand taken by some of the petitioners that SMA should be interpreted to permit the registration of same-sex marriages.
In response to the senior counsel’s submission, the CJI asked him to clarify if his “principle premise is that when the legislation (SMA) was enacted in 1954, the objection of the legislation was to provide a form of matrimony for people, who are not falling back on their personal laws”.
When Singhvi replied in the affirmative, the CJI went on to say that in the last 69 years, the law has “really evolved in India”, particularly after homosexuality was decriminalised.
Therefore, he wondered if the court was required to “redefine the evolving notion of marriage” or “if the requirement for a relationship of marriage is only limited to the existence of binary genders”.
The CJI further clarified that in the present case, the court was not using the Constitution or utilising the text of the Constitution to either read down or strike down the statute (SMA) but maybe expand its meaning in the context of constitutional guarantees.
Justice Bhat sought to elaborate on Singhvi’s proposition of law and said that SMA provided a framework or a concept of marriage. “And the concept of marriage transcends temporary understanding, it’s an evolving dynamic. The framework (in the law) is broad enough to assimilate later developments,” he added.
CJI Chandrachud further clarified the questions that have arisen for the bench’s consideration in the case. “.. we have to ask ourselves whether we would be doing something which is fundamentally contrary to the scheme of the statute,” he said.
‘Marriage is societal protection for same-sex couples’
The questions to be answered by the court, the CJI added, also include whether the court should be bound by the original interpretation of a statute, considering it is not bound by the original interpretation of the Constitution.
Another area of concern for the bench, the CJI said, was if the court would be “completely redoing the tapestry of the law (SMA)” if it comprehended to say that the Act would also include a relationship between same-sex couples.
Singhvi also argued on the requirement of notice, peculiar to SMA, inviting objections to a couple’s application for marriage registration before a magistrate. The senior counsel contended this provision invaded an individual’s privacy. “It’s my personal decisional autonomy to decide with whom I want to associate and for how much time in a matrimonial union,” he told the bench.
“This is only based on patriarchy. These laws were made when women did not have an agency,” Justice Bhat remarked. Agreeing with him, the CJI said: “This is like laying them open for invasion by the society including the Superintendent of Police, the District Magistrate etc.”
The Supreme Court had, in August 2022, rejected a PIL against this contentious provision of SMA, which entails publication of couples’ details 30 days before the intended marriage in public domain. The Kerala High Court had in February this year, however, advised the legislature to reconsider if the provision was needed now.
Later, senior advocate Raju Ramachandran, who appeared for a lesbian couple from Chandigarh, rejected the central government’s theory that same-sex marriage was an “urban elitist concept” as “careless, unnecessary and insensitive”.
He referred to his clients — a Dalit from Punjab and an OBC from Haryana’s Bahadurgarh — to emphasise that the institution of marriage is not just a gateway to various socio-economic rights, but is also a societal protection for same-sex couples from their own parents, who are not enlightened to accept them. In the case of his clients, he added, they had to move the Delhi High Court for protection.
Lack of legal recognition of same-sex marriages also denies such couples equal protection of laws, which creates a “situation of unconstitutionality” which, the senior counsel added, can be avoided by an appropriate reading of the SMA.
Apart from this, it also violates their right to Health under Article 21 and also freedom of conscience, and right to found a family under Article 25.
“Right to Health includes the right to take appropriate medical decisions for me by a person whom I love. In such situations, there is alienation from the parental family and in the event of sickness, an individual is left without a person who can take responsible medical decisions,” explained the senior counsel.
(Edited by Amrtansh Arora)