A bench of CJI D Y Chandrachud and Justices Sanjay K Kaul, S Ravindra Bhat, Hima Kohli and P S Narasimha declared their intent despite solicitor general Tushar Mehta repeatedly requesting the court to hear all states before deciding the Centre’s preliminary objection to the court taking up the issue in the first place as it fell exclusively within the domain of the legislature.
Section 4 of the SM Act provides that any two persons can get married, if the male has completed 21 years of age and the female 18 years. The court said it would examine if marriages under SM Act could be defined through interpretation to mean marriage between two persons instead of between “man and woman” and, thus, make the law gender neutral.
“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, that’s the point. So, even when Special Marriage Act says man and woman, the very notion of a man and a woman is not an absolute,” the CJI said, signalling a preference for gender fluidity that is likely to inform the adjudication.
Very notion of a man and a woman is not an absolute based on genitals: SC on plea seeking legal validation for same-sex marriages
The court, wary of the matter getting ensnared in a conflict over whether its adjudication of the definition of marriage would infringe on the personal laws of communities, decided to confine itself to examining if the SM Act could be expanded beyond the gender binaries.
“The petitioners have come with a much broader canvas. We are unwilling to go into the broader canvas or personal laws issues. We are going to examine the limited issue of whether the provisions of the Special Marriage Act can be read down to mean ‘spouse’ in place of ‘man or woman’ for the purpose of marriage,” the bench said.
The play-it-safe stance was evident when the petitioners seeking recognition of same-sex marriage said the right to marry should extend to all marriage laws. “We have understood the canvas of the issue. We will stay clear of the personal laws. There is some sage wisdom in exercising restraint in going about our interpretative task in an incremental manner. If we do not, then we have to look into Hindu Marriage Act, Parsi Marriage Act and the Muslim Personal law,” the bench said.
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However, Mehta opposed the desire to expand the purview of SM Act beyond the gender binaries of “male” and “female”. He also said the Centre’s argument about the court’s competence to redefine and expand the concept of marriage remained valid even for the bench’s limited intent for a relook at the SM Act.
“Acceptance of societal relationships is never dependent on judgments of legislations. It comes only from within. My submission is that even in Special Marriage Act, the legislative intent throughout has been the relationship between a biological male and a biological female,” Mehta said.
The hearing started on a fiery note with the solicitor general insisting that the court deal with the Centre’s argument about the court’s competence first. He also said he would have to take instructions on whether to continue participation in the proceedings if the “preliminary objections” to the bench taking up the matter in the first place were not addressed, leading to sharp ripostes from both the CJI and Justice Kaul.
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The tone for the hearing was set by the counsel for petitioners, senior advocate Abhishek M Singhvi, who argued that people could not be boxed into defined categories based on a genital-centric approach and the court needed to recognise a whole spectrum of possible sexual identities.
“There is a whole range of combination of persons with special biological features. It’s not only man and woman. One category is ‘sex’ and the second category is ‘gender’. So, a male body can be imbued by female psychological instincts and vice versa. There is LGBTQIA++. This ‘++’ has a whole spectrum of hues and colours. Now, if your lordships were to allow same-person marriage, your lordships should not mean to limit it to same sex. So, the correct formulation should be ‘two consenting adults along the bodily gender and sex spectrum’,” he said.
“The expression ‘sex’ is not limited to biological sex of male or female but intended to include people who consider themselves neither. Recognition of one’s gender identity lies at the heart of the fundamental right to dignity,” Singhvi added.
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While the CJI did not deal with the Centre’s argument for leaving the matter to the legislature, he touched upon it. “The Constitution and the laws are evolving. Allow society to evolve and simultaneously allow Parliament to evolve its response to the evolution of society. We can’t deny that there is a legislative element involved in it. We don’t have to decide everything in this case,” he said.
Justice Kaul supplemented and said, “If the narrow issue — recognition to same-sex marriage under Special Marriage Act — finds favour with us, it gives some right to you. Whether other issues will arise will be known only after we decide (the narrow issue) and depending on the view we take. If they arise, these may be required to be gone into by the court or Parliament some other day. As the CJI said, all social issues need not be decided at one go.”
The court possibly was indicating its reluctance to enter into the complex web of legislations relating to marriages which include rights of husband and wife relating to divorce, alimony, maintenance, succession, adoption, inheritance and guardianship, which fell in the domain of the legislature. However, as guardians of the fundamental rights of citizens, it was willing to determine whether LGBTQIA+ community members had the right to marriage under the SM Act.
The morning session saw the Union government resisting judicial foray into an issue which it said fell exclusively within the legislative domain.
“Parliament and assemblies are the only constitutionally permissible forums which can debate this issue,” the SG said. When the CJI said the bench would first hear the petitioners to know the breadth of the issue, the SG said they should first respond to the Centre’s preliminary objections.
The CJI said, “We will do nothing of that kind. We are in charge of the proceedings and we will decide how to conduct the proceedings.” But the SG insisted that in an issue of such sensitive nature, it would be advisable to deal with the preliminary issue. “If not, then give me time to take instruction to what extent the government would like to participate in this proceeding.”
The CJI said, “Anything but an adjournment.” Justice Kaul caught what the SG was saying and asked, “Do you want to say you don’t want to participate in the proceedings? That is your prerogative. It does not look nice when you said you will not participate.” The SG was quick to clarify, “I want to take instruction. I didn’t say I will not participate. The instruction is on which forum should debate this issue.”
Mehta said, “This is not an issue which can be debated by five learned individuals from the petitioners’ side, and five individuals on this side and five very brilliant minds (judges) of the court. None of us know the views of farmers in southern India, businessmen in the north-east, and common man across India. This will have social and other ramifications.” The CJI said it will consider all these arguments.
Appearing for the petitioners, senior advocate Mukul Rohatgi said his clients’ fundamental rights had been denied and they had a right to move the SC for its protection. Citing the nine-judge bench K Puttaswamy judgment declaring right to privacy as part of right to life, Rohatgi said, “What is required now is a constitutional declaration from the SC that LGBTQIA+ community members can enjoy the right to marriage like their heterosexual counterparts without any discrimination.”
Rohatgi said even though same-sex relationships were decriminalised in the SC’s 2018 Navtej Johar judgment, society still looked at LGBTQIA+ community members with disdain and stigmatised them as they did not have the right to marriage.
“Majority cannot be allowed to steamroll the rights of LGBTQIA+ community. The stigma needs to be removed and the constitutional court cannot deny me a declaration that these people enjoy the same rights as heterosexual counterparts just because some laws recognise marriage is to be solemnised between man and woman,” he said.
“Nero had married two men and had asked the imperial court to recognise the marriage. Lord Ayyappa was born to the union of two male gods — Shiva and Vishnu (as Mohini). So, historically too, rights of LGBTQIA+ community members rights were recognised,” he said. But the SC said, “Let us not model ourselves after Nero.”
Arguments would continue on Wednesday. The court asked counsel for the petitioners to conclude their arguments by Thursday.