New Delhi: The Constitution Bench of Supreme Court hearing a set of petitions on marriage equality Thursday asked the central government if it was willing to consider granting social-welfare benefits to same-sex couples, who are in a long-term relationship, without conferring a legal recognition of marriage on their union.
The query by a five-judge bench led by Chief Justice D.Y. Chandrachud was put forth to solicitor general Tushar Mehta when the latter argued that while same-sex persons have the fundamental right to cohabit, choose a partner etc., the same cannot be given the label of marriage.
Also comprising justice S.K. Kaul, S.R. Bhat, Hima Kohli and P.S. Narasimha, the bench pointed to the law officer that the law granted certain rights to heterosexual couples living together for long, though not married formally.
It asked Mehta if similar benefits could be extended to homosexual couples as well, suggesting that such measures could ensure that same-sex unions are not ostracised by society.
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Financial security & cohabitation
The CJI was the first to share his view. “Once you recognise there is a right to cohabit, and it may be symptomatic of a sustained relationship, then it is the obligation of the state that all social impact of the cohabitation has a legal recognition. We are not going into marriage at all,” he said.
Justice Narasimha expressed a similar opinion. “When we say recognition, it may not always be recognition as marriage. Recognition can mean association, which should entitle them to certain benefits. The association of two people need not be equated to marriage,” he observed.
Justice Bhat weighed in further, saying, “Recognition must be something, which gives them (same-sex couples) benefit.”
The CJI said the bench was pushing the central government to assist the court in a “non-adversarial manner” because it understood the latter’s concern about the court entering the domain of the legislative branch of government if it were to accept the petitioners’ demand, which is to rewrite the Special Marriage Act (SMA).
“The reason why we are trying to push you to this is because we take your point that the court’s remit is not to legislate. But short of that, the law has gone so far. What does the government want to do with cohabitation relations? How can a sense of security and social welfare be made to ensure they (relations) are not ostracised,” the CJI asked Mehta.
He referred to an old Privy Council principle that declared long cohabitation would raise the presumption of marriage.
The court sought to know from the solicitor if the central government could put in place measures that would allow same-sex couples to have a joint-bank account or to name their partner as a nominee in an insurance policy to impart a sense of financial security to their cohabitation.
Mehta termed these as human concerns, which he said the government shared, and on the CJI’s asking promised to assist the court in addressing them, without extending any legal backing to same-sex marriages.
“The modality adopted is important since the term used can also be partner, if not that then it may be counter-productive,” Justice Bhat opined.
According to Justice Kaul, the 2018 judgement decriminalising homosexuality would have made many people declare their sexual orientation and continue with their relationship. Hence, he asked Mehta whether the government had “given any thought about the problems such couples may encounter in daily life”.
He equated same-sex relationships to live-in relationships, which over the years has received recognition, to some extent. “Live-in relationship was also in this category. Some obligations follow. Similarly, problems are bound to arise here in different aspects. For example, a bank account, adoption and so many other things. This is an aspect where I thought the government may have thought about it,” added Justice Kaul.
Reacting to Mehta’s assurance that he would revert with his inputs to remove the “barriers” without any legal or statutory recognition, Justice Bhat said, “You may not want to confer them any status, but you need to bring down the barriers.”
Mehta is expected to appear before the bench with his response on 3 May, which is the next date of hearing.
‘Unbridled personal autonomy’ & incest
Earlier, Mehta argued that if “unbridled personal autonomy” is allowed in terms of sexual orientation, then someone could in the future raise a challenge against prohibition on incest.
The solicitor general was arguing against the petitioners’ claim that it is their right to choose their sexual orientation. He claimed if the petitioners’ contention that sexual orientation be considered a valid reason for autonomy is allowed, then prohibition on incest could also be questioned.
“Please visualise a situation five years down the line. I am attracted to someone in a prohibited (degree of) relationship. Incest is not uncommon across the world and it is prohibited. Someone is attracted to their sister and claims autonomy and is doing something in private domain. Now, cannot this (provisions against incest) be challenged saying, ‘How can this be prohibited’?” he argued.
To the CJI’s response that petitioners were not arguing that sexual orientation is not a matter of choice, but rather an innate characteristic, Mehta contended that there were two schools of thought on this – one, that said sexual orientation can be acquired and the other, stating it is innate.
The CJI, however, dismissed Mehta’s argument as “far-fetched” and said that sexual orientation cannot be exercised in all aspects of marriage and that it cannot be used to justify allowing incest.
While wrapping up his arguments for the government, Mehta cited provisions from other statutes such as guardianship, succession, domestic violence, dowry death & dowry prohibition, divorce, sexual offences, abetment of suicide, to drive home his argument that several of those provisions could become unworkable in case there is tampering with SMA.
He also quoted personal laws to buttress his point that alteration of Special Marriage Act would necessarily affect religious laws as well.
Meanwhile, the bench Thursday also ruled out giving a judgement on the SMA provision that mandates a 30-day-notice period upon a marriage application received from a couple who wants to tie the knot.
Some of the petitioners have challenged the notice on the ground that it denies them their right to marry a person of their own choice.
The bench, however, noted that the issue at hand was not restricted to homosexual couples, but also concerns heterosexual couples. It was of the view that any challenge to this provision can be dealt by a bench of a lower strength, which could either be a two or a three-judge bench.
(Edited by Amrtansh Arora)