New Delhi: The Constitution bench led by Chief Justice D.Y. Chandrachud Tuesday said it would “steer clear of personal laws” in the hearing related to legal recognition of same-sex marriages.
CJI Chandrachud also asserted that the issue was “complex” and added that the notion of a man and a woman is not “an absolute based on genitals.”
Setting down the “remit” of the matter, the bench — also comprising Justices Sanjay Kishan Kaul, S. Ravindra Bhat, P.S. Narasimha and Hima Kohli — observed that even though the petitioners came with a “broader canvas,” it was “unwilling to go into it.”
The bench indicated that it may only confine to the interpretation of the Special Marriage Act (SMA) to include the term “person” instead of man and woman.
“We are not willing to go into personal law issues. Remit will thus have to be restricted only to the extent we are willing to consider the issue,” it told the counsels appearing for petitioners as well as the respondents, which include government, religious bodies and individuals.
Solicitor General Tushar Mehta raised a preliminary objection to the petitions as he questioned their maintainability.
He urged the bench to first decide on the Centre’s application in which it asserted that only Parliament is the competent body where the debate on legalising same-sex marriage can take place.
“We are misdirecting the question. The question is not about the right to equality or privacy of persons belonging to the LGBTQ community. These rights have been recognised through two judgments — NALSA (transgender rights) and Navtej Johar (Section 377 IPC). The question is whether the right of conferment of socio-legal status can be done through judicial adjudication,” Mehta told the bench.
The CJI did not accept Mehta’s submission, saying he cannot dictate the bench on how it should proceed. CJI Chandrachud added he would prefer to first hear the other petitioners.
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Focus on Special Marriage Act
But before moving ahead, the bench asserted that it would like to outline the contours of the case, considering some petitions have challenged the provisions of the Hindu Marriage Act (HMA), besides asking the court to re-interpret the Special Marriage Act (SMA) in a manner that it permits homosexual marriage.
“There may be some amount of sage wisdom in also going about our tasks in an incremental manner. Because otherwise do we then confine ourselves only to HMA? What about the Parsis, Jews, Muslims? There are a lot of communities,” the CJI observed.
His remarks came when senior advocate Menaka Guruswamy, appearing for one of the petitioners, submitted that there were concerns with the HMA.
The Hindu Marriage Act is not an issue necessarily of personal law, she said. “It is a statutory law. We will demonstrate that. The terms of the constitution, the reforms have always been statutory in nature.”
She added that the origin of HMA or the Hindu code did something that was not committed in “sacramental Hindu Law, which is inter-caste marriage, Sagothra marriage, inheritance etc.”
But, the CJI took the view that the court has to be mindful that both the Constitution and the law are evolving and moving by process of “interpretation.”
Hence, “perhaps, going incrementally, covering a canvas for the present, confine yourself to this canvas and then allow Parliament’s perception to evolve with time. Because Parliament is also responding to the evolution of society,” he added, highlighting how society has found much greater acceptance of same-sex couples post Section 377 judgment.
Justice Kaul agreed and suggested that sometimes “incremental changes in issues of societal ramifications are better.” “Therefore, can we, for the time being, confine it only to limited issues, (and) don’t step into personal law issues,” he said.
The bench told the petitioners that since the court is “playing a dialogical role to create a consensus to move towards an equal future,” they should assist it on how “we can develop the notion of a civil union, which finds recognition in SMA.”
Mehta repeatedly contended that Parliament is the appropriate forum where the issue of same-sex marriage can be debated.
He took the court through the new Transgender Act, claiming there is a statutory framework that recognises the identity of transgenders. The definition of transgenders in the Act, he clarified, is not in the colloquial sense but covers all the members of the LGBTQ community. Any violation of the law invites penal consequences, he added.
Mehta was of the view that even though the court may “steer clear” from personal laws and not bring about any changes, its verdict even in the context of SMA will “necessarily affect” them.
Despite the court asserting that it would not get into the personal laws, Mehta insisted a verdict will open several windows for future.
He added the Section 377 judgment had already opened several windows and now “with the present petitions”, the petitioners are “trying to open the door.” “I am saying you will have to open the entire house,” Mehta argued.
He also insisted that states should be included as parties since they frame their own rules under SMA for marriage registrations.
However, the bench appeared reluctant to accept Mehta’s plea. “We don’t want to touch personal laws, then why should states be heard. We are confining ourselves to just one issue: whether SMA can be read in a manner (to allow same-sex marriage),” Justice Kaul said.
He then asked Mehta whether the “windows opened” after the Section 377 judgment “have got sufficient breeze.”
The CJI was quick to add that the windows would open irrespective of whatever the court decides as it cannot control the future generations.
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‘Biological male & female’
Mehta insisted that all existing laws and practices, including SMA, recognises only a biological male and a biological female for marriage.
According to him, any alteration in their definition would hamper implementation of other laws such as the CrPC or the IPC, where a man and a woman is identified in a similar way as it is done in personal and secular laws.
The CJI took objection to the “value judgment” made by Mehta, saying that his notion about biological man and woman being absolute is incorrect.
“There is no absolute concept of a man or an absolute concept of a woman at all. It’s not the question of what your genitals are. It’s far more complex…,” the CJI said.
At this, Mehta attempted to explain his argument. “If I have the genitals of a man, but otherwise am a woman, as being suggested, how will I be treated under CrPC? As a woman?”
Senior advocate Rakesh Dwivedi, appearing for Madhya Pradesh, also urged the court to include states as parties. He made a brief submission on how homosexual couples cannot be equated with heterosexual couples in terms of rights.
According to Dwivedi, though same-sex relationships have always been there, marriage emerged as an institution to perpetuate the human race. Therefore, he said, the two unions are at different pedestals.
Senior advocate Kapil Sibal, who appeared for Jamiat-Ulema-I-Hind, asked the court not to adopt a piecemeal approach. He said that he personally stood for rights for the LGBTQ community, but a piecemeal declaration will create problems for their union.
With the court clarifying that it would not touch upon personal laws, Sibal said he may not argue the matter on behalf of his client, but would assist it in the matter.
(Edited by Tony Rai)