New Delhi: The Supreme Court Wednesday termed the Modi government’s proposal to constitute a committee to examine whether certain legal rights could be granted to same-sex couples, without legal recognition of their relationship as a “marriage”, as a “very fair suggestion”. It was a small beginning, the court said, but an “incremental” and “substantial one”.
“We will have to decide this (case) as a matter of concept, but to the extent that the government has taken the first step forward, there would be a substantial benefit and advancement in the recognition of cohabitation of same-sex couples,” the court said.
The observations were made by a five-judge bench led by Chief Justice D.Y. Chandrachud as it took up a batch of petitions demanding marriage equality for same-sex couples under the Special Marriage Act (SMA). The other judges on the bench are justices Sanjay Kishan Kaul, Ravindra Bhat, Hima Kohli and P.S. Narasimha.
At the outset, Solicitor General Tushar Mehta informed the bench that the government was agreeable to setting up a committee under the cabinet secretary to examine what types of legal rights could be given to same-sex couples.
“The government is positive. What we have decided is that this would need coordination between more than one ministry. Therefore, a committee headed by no less than the cabinet secretary will be constituted,” Mehta said.
The solicitor’s submission was in response to the top court’s query made last week on whether certain rights could be granted to same-sex couples to ensure their social security and welfare.
It wanted to know if any executive guidelines could be issued so that same-sex couples can undertake financial security measures such as opening joint bank accounts, nominating partner in life insurance policies, provident fund etc.
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‘Only factual problems’
Mehta sought suggestions from the petitioners that convey the problems they are facing, so that the government could address them so far as legally permissible.
He, however, ‘requested” the petitioners not to give “jurisprudential ideas” as only factual problems could be addressed by the proposed committee.
“Suppose the government says that nomination in Provident Fund is family member or anyone else, then you don’t need to go into anything else,” Mehta said.
At this, the bench asked the petitioners’ lawyers to sit with Attorney General R. Venkataramani and Mehta over the weekend for a discussion.
However, the bench clarified that this will not prejudice the arguments made by the Centre in response to the petition, and that it would continue to hear the matter on the broader concept of whether same-sex marriage can be recognised under the SMA, as demanded by the petitioners.
The clarification was made when the petitioners expressed reluctance to Mehta’s proposition and claimed that the resolution intended by the government was in the nature of administrative tweaking and not legal.
“There won’t be any major solution,” senior advocate Abhishek Manu Singhvi, representing one of the petitioners, told the bench. He welcomed the government’s move to form a committee, but added that substantive changes in the law would be required to grant legal recognition to same-sex marriage.
“From what is indicated (by Mehta) is that an order or notification would be issued to make some modifications,” Singhvi submitted.
Another senior advocate, Menaka Guruswamy, beseeched the bench to adjudicate the issue and said that youngsters from small towns had told her during interactions that they all want to marry and have a family just like any other heterosexual couple.
“I am not speaking as an elite lawyer, but I say this having met these young people. Don’t let them experience what we have experienced,” she told the court.
CJI Chandrachud interjected to say that there “is a problem with her line of argument”.
While understanding the feelings out of which she made the argument, the CJI said that her submission could lead to a “serious problem at the constitutional level”.
“As a constitutional court, if we go by what young people feel, then we would be subject to volumes of data on what other people feel. Therefore, the great salutary safeguard of constitutional adjudication is that the court has to go by what the Constitution mandates and therefore we don’t go by either popular morality or judgemental morality. We decide what the Constitution says,” he told the lawyers for the petitioners.
“I am sure there are people on the other side who would throw tombs of material at us to say what the country feels. Let us not get into it at all,” he said.
The CJI told the petitioners that mere declaration of right to marry is not adequate itself, unless it is implemented by statutory provision, which recognises, regulates and confers entitlement on those who are married.
The court admitted that the real achievement for the petitioners would be if there is a statutory framework for implementing that right, which the latter believe they have under Section 4 of the SMA, a provision that recognises inter-caste and inter-faith marriages.
However, the CJI added, what if the court comes to the conclusion that such a right cannot be located in Section 4? Moreover, he added, the argument made by the petitioners in the case is not as simple as it appears to be because there are too many interlinkages with other statutes, including personal law, which the court may be “treading upon”, something that is “perhaps” outside its domain of judicial review.
“Then what is our concern?” the CJI said, adding that “everything has to be achieved in incremental steps”.
As a social institution, marriage has evolved over a period of time, the CJI observed. For now, the court can ensure by acting as a facilitator that real progress is achieved today in terms of a wider societal acceptance of the right to cohabit together, the CJI told the petitioners.
‘Practical way out’
Justice Bhat also weighed in and called the government’s move a “practical way out”. “Although this is being termed administrative, it would have to be translated into changes in the law,” he added.
Mehta tried to further explain that the committee would look into all the issues arising in the petition. While some may need changes in the law, some may not, he added.
But Guruswamy argued that the government’s fresh move does not “take away the assertion of rights for two adults, who are self-sufficient to live together”. “Right is a proactive positive enactment that the law recognises,” she contended.
However, both CJI Chandrachud and Justice Bhat said that the government has in its submissions accepted that people have a right to cohabit, even though it may not be accepted as a social reality.
Based on such a relationship, there may be certain aspects such as nominations made in bank accounts, insurance policies, which are practical issues, which the government is keen to resolve, they said.
Justice Kaul, too, joined in to convince the petitioners not to sit with prenotions over the government offer. “This is without prejudice to everybody’s right. Many changes are required in administrative proceedings as also legislative aspects,” he said.
“They are not denying this is an incident of society that is happening. They are reluctant to give status of marriage, but not reluctant to sort out the problems arising from a gay companionship without labelling it as marriage to the extent possible,” the judge added.
Justice Bhat said that if the formation of a committee brings some gains for the community, then it is one of the “building blocks for future”. And, despite that, if the petitioners wanted a ruling, the court was ready to do so.
The judge said “some quietus (to the issue) at this stage is not the end of the battle of the movement (by the LGBTQ)”.
“Your movement for equal recognition or equality would always remain,” he added. “Whatever you get, take the positive part of it. Even if you don’t accept this or partly accept this, it would not be the end.”
(Edited by Sunanda Ranjan)
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