New Delhi: A Constitution Bench led by Chief Justice (CJI) D.Y. Chandrachud will Tuesday start hearing a batch of petitions demanding legal recognition to same-sex marriages. The other members of the bench are justices Sanjay Kishan Kaul, S. Ravindra Bhat, P.S. Narasimha, and Hima Kohli.
A CJI-headed three-judge bench had on 13 March referred these petitions to the Constitution Bench, observing that the petitions involve “interplay between constitutional rights and specific legislative enactments”, including the Special Marriage Act, 1954.
This reference was done in line with Article 145 (3) of the Constitution, which underlines that petitions raising substantial questions of law involving interpretation of the Constitution should be heard by at least five judges.
It was ordered while brushing aside the Centre’s objection to the prayers made in the petitions, with the government asserting that only Parliament can legislate on the issue of same-sex marriage.
On 25 November 2022, the Supreme Court took note of the two petitions before it, which centred around the constitutionality of the Special Marriage Act, 1954 (SMA).
Filed by two gay couples, the petitions described SMA as discriminatory, as it recognises marriage only between a male and female. This denies matrimonial benefits — such as adoption, surrogacy and retirement benefits — to same-sex couples, the petitioners contended.
While the SC decided to hear the two petitions, eight similar pleas were already pending in the Delhi High Court, and one each in Kerala and Gujarat High Courts.
Abhijit Iyer Mitra, a senior research fellow at the Institute of Peace & Conflict Studies, was the first to raise the issue in the Delhi High Court in November 2020.
Subsequently, seven more were filed in the court over the next two years, until the petitions were transferred to the Supreme Court on 23 January 2023.
Taking note of the petitions filed before different high courts, a bench led by CJI Chandrachud on 6 January 2023 directed that all cases dealing with same-sex marriage be transferred to the Supreme Court.
ThePrint takes a look at the arguments raised by the petitioners, the Centre’s objection, the stand taken by religious institutions and opposing concerns expressed by two child-rights statutory bodies, who too want to be heard by the Supreme Court.
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Petitioners’ case
The first petition in connection with same-sex marriage was filed by Abhijit Iyer Mitra in November 2020, almost two years after the Supreme Court read down Section 377 of the Indian Penal Code (IPC) to grant legal validation to homosexuality in India.
The Navtej Johar verdict in 2018 outlawed the Victorian-era law that criminalised same-sex relationships and punished homosexuality.
Iyer Mitra’s petition and the others that were filed in the last two years have sought recognition of same-sex marriage under community-specific laws, particularly the Hindu Marriage Act (HMA), which is followed by Buddhists, Sikhs, Jains and all the sects of Hinduism.
It is argued that the HMA does not differentiate between heterosexual and homosexual marriages in its wording. According to Section 5 of the HMA, a marriage may be “solemnised between any two Hindus”. Section 5 lists the conditions for a marriage.
Some petitions have also asked for registration of same-sex marriages under the SMA, which is a secular law.
Although Section 4 talks about solemnisation of “marriage between any two persons”, sub-section ‘c’ of the same provision deals with the minimum age of a male and female to be eligible for marriage. Section 4c notes that a male should have completed the age of 21 years and a female 18 to get married.
The Foreign Marriage Act of 1969 (FMA) also stands impugned for the same reasons as cited for the SMA. The petitioners who have questioned the constitutional validity of this law have objected to the use of terms “bride” and “bridegroom”, stating that the two words limit the law’s application to heterosexual marriages.
The petitioners have submitted that the HMA, SMA and FMA in their present form infringe on a person’s fundamental right against discrimination, which is guaranteed to them under Articles 14 and 15.
The laws also violate their right to freedom of expression as well as right to privacy, which was declared a fundamental right following the Puttaswamy judgment in 2018, they have said.
They have asked the court to either strike down the “discriminatory” provisions or interpret them in a manner that includes homosexual couples.
A challenge has also been raised to the requirement of notice and objections in SMA and FMA. In the two marriage laws, a notice is issued inviting objections to a couple’s application to marry.
Same-sex marriage elitist view: Centre
The BJP-led central government has opposed the petitions through three different affidavits, saying same-sex marriage cannot be legitimised.
Terming it an elitist view, the Centre in its latest submission to the court has questioned the maintainability of the petitions.
The Centre’s first affidavit in the Delhi High Court in February 2021 said that a marriage is only between a man and a woman, and that interference in current marriage laws “would cause havoc” in society.
In its affidavit before the top court, filed in March this year, the Centre said the petitioners cannot claim a fundamental right to same-sex marriages, adding that the Centre was not opposed to same-sex relationships.
According to the “legislative understanding of marriage in the Indian statutory and personal law regime”, a marriage refers only to marriage between a biological man and biological woman, the Centre said. Urging the court to let Parliament take a call on the issue, the Centre asserted that any “recognised deviation… can occur only before the competent legislature”.
The Centre’s third response, filed Sunday, states that the petitions represent “mere urban elitist views for the purpose of social acceptance” and the legislature will have to consider broader views.
The current definition of marriage has a social consensus, and the legislature, in giving sanction to that form, is only discharging its duty of adhering to the will of the people.
“This unequivocal democratic will should not be negated by a judicial order,” the Centre said, adding that broader views to be considered for any changes to the definition of marriage would have to include voice of all rural, semi-rural and urban population, views of religious denominations keeping in mind personal laws, as well as customs governing the field of marriage together with its inevitable cascading effects on several other statutes.
Also Read: ‘Against Indian notion of marriage’ — why Modi govt is opposed to registering same-sex marriages
Organisations oppose petitions
Certain organisations, including religious bodies, have joined the Centre in opposing the registration of same-sex marriages.
The first such intervention application was filed in the Delhi High Court in December 2021 by NGO Sewa Nyaya Utthan Foundation, a Delhi-based non-profit organisation that claims to work for social inclusion and protection of “vulnerables”.
This application has been transferred to the top court along with the petitions.
Same-sex marriages should not be permitted under the HMA, as — in Hinduism — tying of the nuptial knot is allowed only between a man and woman since times immemorial, said the application.
“Marriages in societies like Hindu are very much part of their religion and derived and associated with their divine entities as well as religious texts and thereby hold significant sentimental values,” the NGO has submitted.
An intervention application filed by the Varanasi-based Akhil Bhartiya Sant Samiti (ABSS) makes a similar plea before the top court. Marriage, according to Hindu law, is a “holy sanskar (sacrament)” and not a contract like Muslim side, it has said.
The ABSS’ petition claims the body is an organisation of 127 sects of “sanatan dharma”, which is working for the welfare and upliftment of “sanatan culture, vedic development and social upliftment”.
Meanwhile, Muslim body Jamiat Ulama-i-Hind has in an application called same-sex marriage an “assault on the family system”. The Jamiat Ulama-i-Hind is one of the leading organisations of Islamic scholarships belonging to the Deobandi school of thought.
The petitions are in complete contravention of the “established understanding of the concept of marriage in all personal laws — between a biological man and a biological woman — and thus intends to rake up the very core, i.e., the structure of a family unit prevailing in the personal laws system”, it has argued.
Calling same-sex marriage “an exclusive western concept”, the Telangana Markazi Shia Ulema Council — which claims to be a religious and spiritual organisation — has said it is “unsuited to the social fabric of India”.
Same-sex marriage, it has said, is in the teeth of the injunctions of the Islamic faith. Children raised by homosexual couples lag behind kids of heterosexual couples, it has told the court, while quoting some “research”.
The Telangana Markazi Shia Ulema Council is an organisation whose main aims and objectives include dissemination of spiritual teachings, the body has told the court.
Child-rights bodies oppose each other
Meanwhile, two statutory child-rights bodies have expressed contrary opinions on the issue of same-sex marriage.
In its intervention application, the National Commission for the Protection of Child Rights (NCPCR), a Union government body, has opposed the pleas on the ground that adoption by same-sex parents is akin to “endangering children”.
Studies show that such a child gets affected both socially and psychologically, it has said.
Same-sex parents may have a limited exposure to traditional gender role models, it has added. Therefore, children’s exposure would be limited and their overall personality growth would be affected, the commission has said.
In contrast, the Delhi Commission for Protection of Child Rights (DCPCR) — which comes under the Delhi government — has backed same-sex marriages as well as adoption by homosexual couples.
It has said there is no empirical data to suggest that same-sex couples are unfit to be parents, or psychosocial development among the children of same-sex couples is compromised.
(Edited by Sunanda Ranjan)
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