New Delhi: The Supreme Court Tuesday held detailed deliberations on consequences that are likely to follow if petitions demanding equality of marriage for non-heterosexual couples are allowed under the Special Marriage Act (SMA), and wondered if it would have to undertake “too many legislative steps” in deciding potential issues that might arise in future.
On the fourth day of the hearing on petitions demanding legal recognition of same-sex marriages, a five-judge bench posed questions on these lines to senior advocates Menaka Guruswamy and Saurabh Kirpal, who — appearing on behalf of the petitioners — said the moot question of law before the court involves re-understanding the concept of a marital relationship and that it should adjudicate the “lis” (issue).
Other judges on the bench led by Chief Justice D.Y. Chandrachud are justices S.K. Kaul, S.R. Bhat, Hima Kohli and P.S. Narasimha.
Guruswamy contended that a bouquet of Supreme Court verdicts “have given principal protection” to homosexual couples. But that principal protection “is not enough for the business of life,” she asserted, adding that the court must give a declaration to hold same-sex marriages under the Special Marriage Act (SMA) legal.
She argued that while this declaration was the first step, the second step would be some illustrative list (of statutes whose interpretation may be impacted by the court’s verdict) to make the declaration workable.
“My lords have been the north star in many cases, pre the legislature walking the talk. We don’t ask for anything special today. We are only asking for a workable interpretation of the Special Marriage Act,” she said.
Guruswamy challenged the government’s opposition to the petitions on the grounds that only Parliament is the appropriate forum to debate on the subject. “When our rights are being violated, we have the right to come to this court,” she contended before the bench.
However, CJI Chandrachud observed that it cannot be “disputed that Parliament has the powers to interfere with the canvas covered by these petitions”. He reminded the lawyer that marriage and divorce are part of the concurrent list in the Constitution, which means both central and state governments can legislate on it.
Kirpal, meanwhile, contended that the case before the court was about marriage equality. Petitioners in the case, he added, were attributing their argument to inconsistencies in the law (SMA). There is a clear failure to recognise a marriage by the State, which has a devastating effect on the dignity of the individual as well as on his/her substantive right, he argued.
“I don’t need to attribute any exclusion. It is writ large (obvious). The law has a disparate and disproportionate impact on same-sex couples,” Kirpal said.
Succession, inheritance & lavender marriages
The test for the court, the CJI added, is how far could it go. He asked if a declaration by the court meant that it would not have to deal in future with related issues such as succession and inheritance that are dealt with under personal laws, particularly in the case of Hindus.
“If we declare that man and woman in SMA should be read as spouse (in the case of same-sex marriage), can we stop at that today? What happens when two Hindu women get married (under SMA) and one of them dies due to unforeseeable circumstances, the surviving spouse will be left with nothing because under the Hindu law, there is a different line of succession for men and women,” CJI Chandrachud said.
He went further to enquire whether the court could today avoid going into “other issues that may be interlinked with what is being argued”.
Justice Bhat had a follow-up question on similar lines. He told Guruswamy that the “theoretical underpinnings” of her argument are an easily comprehensible and “easily achievable target” as long as the court confines itself to that. But he too raised concerns over the possible impact the court’s interpretation of SMA may have on personal laws and how many times would the court have to “follow up” to accommodate non-heterosexual couples in other statutes, such as the succession law.
“It is hard to say leave it for later. How many times we will have to take up the litigation. So is this our job,” Justice Bhat asked Guruswamy.
The CJI also referred to the Payment of Gratuity Act, 1972 and said the statute defines who will be entitled to social welfare benefits in the case of the death of an employee. He added that if the petitioner’s argument that the benefits must devolve on the same-sex spouse of that particular employee was to be accepted, would it not amount to the court “giving a value judgement” by interposing who benefits under the statute?
Both CJI and Justice Bhat said though SMA was introduced as a legislative framework for inter-religious and inter-case marriages and warranted the couple to sever ties from their respective families, introduction of section 21A to the law allowed four communities, namely Hindus, Jains, Buddhists and Sikhs to go back into the fold of their personal laws for the purposes of succession. “Therefore, there is no denying of getting over the link between SMA or personal law,” the CJI said.
When Guruswamy acknowledged that the present discussions may have to go beyond SMA, Justice Bhat quipped: “Your message is to embrace more litigation because you don’t believe Parliament will do anything.”
He also wondered if the petitioners in the court actually spoke for the entire LGBTQ community.
“There may be unheard voices who may want to preserve their way of life, tradition and they don’t want to break away. If we go a step further, won’t we deny them their rights,” he asked.
Guruswamy responded by saying it was a matter of choice for same-sex couples. “Those who chose to opt-out can do so. Choices are applied actively, but to have an ability to have that choice is an act of constitutional principle,” she submitted.
Taking the argument forward, Kirpal told the bench that the question facing it was how workable the interpretation (of SMA) would be and how far the court could go.
“It may mean a lot for us (petitioners) personally. But at the end of the day you (court) are discussing the lis before you, which is a challenge to the SMA. The court may decide accordingly. If someone comes under Hindu Marriage Act (HMA) in future, then the court can apply doctrine of precedence to decide that case,” he said.
Prevention of queer marriages in India by not granting them legal recognition may lead to lavender marriages, he further added.
A lavender marriage can be loosely described as a marriage of convenience between two homosexual individuals with the aim to keep up social appearances as a heterosexual couple.
“It cannot be said that because the legislature did not intend, your right is effaced,” Kirpal said, countering the central government’s argument.
He said the court was under a constitutional obligation to protect the fundamental rights of the queer community. Those rights may have consequences, but that cannot be a ground to leave them without any remedy, Kirpal added.
(Edited by Amrtansh Arora)