Manas Dasgupta
NEW DELHI, Mar 13: A three-judge Bench led by the Chief Justice of India D.Y. Chandrachud on Monday referred to the Constitution Bench of five judges to decide on a petition seeking legal recognition for same sex marriage, which the Supreme Court said was a “matter of seminal importance” having huge bearing on the society.
The Court listed the case for final arguments on April 18 when it will be live-streamed from the court room on the Supreme Court website and on YouTube in the public interest.
“This judgment will have a huge bearing on society – don’t cut down anyone’s time and this must be considered,” the three-judge bench said. The three-judge Bench, also comprising Justices P.S. Narasimha and J.B. Pardiwala, invoked Article 145(3) of the Constitution to refer the case to a Constitution Bench.
Article 145(3) mandates that cases involving substantial questions and interpretation of the Constitution should be heard by a Bench of at least five judges. Chief Justice Chandrachud said the case involved an “interplay” between constitutional rights of life, liberty, dignity, equal treatment of members of the LGBTQ+ community members and specific statutory enactments which considers only a married union between a biological man and woman.
The petitioners had argued that the Court in its judgement in Navtej Singh Johar case in 2018 while decriminalising homosexuality had also upheld the individual right to family and choice of partners.
The centre in its affidavit in the Supreme Court had opposed the same-sex marriage while invoking the “accepted view” that a marriage between a biological man and woman was a “holy union, a sacrament and a sanskar” in India.
The institution of marriage has a sanctity attached to it and in major parts of the country, it is regarded as a sacrament, a holy union, and a sanskar. In our country, despite statutory recognition of the relationship of marriage between a biological man and a biological woman, marriage necessarily depends upon age-old customs, rituals, practices, cultural ethos and societal values,” the Centre said in a 56-page affidavit filed on March 12.
“We are of the view that it would be appropriate if the issues raised are resolved by the bench of five judges of this court with due regard to Article 145(3) of the Constitution. Thus, we direct it to be placed before a constitution bench,” the judges said.
At least four gay couples have in recent months asked the court to recognise same-sex marriages, arguing that the right to marry a person of one’s choice should extend to the LGBTQ community.
The Centre argued that the same-sex marriage is not compatible with the concept of an “Indian family unit”, which, it said, consists of “a husband, a wife, and children which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two – who are reared by the biological man as father and the biological woman as mother.”
Solicitor-General Tushar Mehta, representing the government, said recognizing gay marriages would trigger legal problems. “Marriage is not just a contract for Hindus and it may be so in Mohammedan law. In Islam too, it is between biological man and biological woman. The moment marriage as a recognized institution comes between same sex, question will come on adoption. Parliament will have to examine and see the will of the people, the psychology of the child has to be examined… whether it can be raised in such a way, parliament will factor into societal ethos,” Mehta said.
Chief Justice Chandrachud replied: “The adopted child of a gay or lesbian couple does not have to be a gay or lesbian solicitor.” The Centre said the decriminalising of gay sex should not be construed as the right to marry. The government lawyer also said the subject involved a legislative function.
Representing the petitioners, Abhishek Manu Singhvi said the right to marry could not be withheld from anyone “solely on the basis of their sexual orientation.” “In case the right to marry is extended to this class, it must be extended in equal terms. The Special Marriage Act has to be read in a way to extend to such classes also. Terms such as ‘man’, ‘woman’ have to be done away with,” Mr Singhvi said.
With the subject being a taboo in a country like India, it was pointed out that though homosexuality had been decriminalised in 133 countries, same sex marriage had been legalised only in 32 countries and decriminalising homosexuality cannot be considered a ground for legalising same-sex marriage. While it is not legal in 10 countries, same-sex couples do enjoy certain rights there, whereas, in the rest of the 91, it is currently illegal.
On Sunday, over 2,000 members and supporters of the LGBTQ community took to the streets of New Delhi to press for equal marriage rights, after the Supreme Court on Friday transferred to itself petitions pending in various High Courts seeking legal recognition of same-sex marriage.
The members returned after a three-year break forced by COVID-19. This time their hopes have been raised by the Supreme Court’s move. “We need to really focus on those rights like inheriting properties together (and) opening bank accounts. Marriage is one big thing because once marriage comes into play then all these other aspects of the rights will be met,” some marchers said.
The Supreme Court while decriminalising homosexuality in 2018 had held that the criminalisation of sexual relationships between adults of the same sex was unconstitutional. However, the Indian government has resisted previous attempts to formally recognise same-sex relationships in cases heard in lower courts. In 2021, Solicitor-General Tushar Mehta told the Delhi High Court that according to law, marriage was permissible between a “biological man” and a “biological woman”. The Centre also argued against the urgency of the pleas by saying nobody was “dying” in the absence of a marriage certificate.
The Centre’s position on the issue is not unique given that currently, more than 6.77 billion people around the world are living in countries where same-sex marriage is not legal, while only 1.21 billion are living in nations where it is legal. Until 2000, the year in which the Netherlands made same-sex marriage legal, in no country was it allowed.
