The Supreme Court is poised to announce its long-anticipated decision on a set of petitions advocating for legal recognition of queer marriages tomorrow.
A five-judge panel, led by Chief Justice of India DY Chandrachud and including Justices Sanjay KishanKaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, initiated the hearings on these petitions on April 18, 2023. After extensive discussions, the panel reserved its judgment on May 11, 2023, setting the stage for a decision with significant implications for the LGBTQIA+ community’s pursuit of equal rights in India.
At the heart of the matter are twenty petitions submitted by same-sex couples, transgender individuals, and LGBTQIA+ activists. These petitions collectively challenge the provisions of the Special Marriage Act 1954, Hindu Marriage Act 1955, and the Foreign Marriage Act 1969. Specifically, they argue that these laws, in their current form, do not acknowledge non-heterosexual marriages, thereby perpetuating discrimination against the LGBTQIA+ community.
Initially, the government urged the Supreme Court to reject the batch of petitions, citing issues of validity. It contended that marriage, as a socio-legal institution, should only be established, recognized, and regulated by the competent legislative body under Article 246 of the Indian Constitution. The government argued that the courts lacked the authority to establish or recognize marriages through judicial interpretation or legislative adjustments. Chief Justice DY Chandrachudquestioned the merit of this objection, emphasizing that its validity depended on the case presented by the petitioners. The CJI stated, “Once we have a picture of the canvas they’re arguing on, we may instruct them on the canvas we want them to argue on.”
Before commencing the hearings, the court clarified that, for now, it would restrict its examination to the Special Marriage Act and would not delve into personal laws. Consequently, the challenge related to the Hindu Marriage Act was not taken up. Chief Justice Chandrachud and Justice SK Kaul both advocated for gradual change, suggesting that the court should focus on a specific issue without interfering with personal laws. Justice Kaul remarked, “Sometimes incremental changes in issues of societal impact are more effective. There’s a time for everything.”
In its second counter affidavit, the government argued that marriage was an exclusively heterosexual institution and suggested that those seeking marriage equality in India represented urban elitist views. The Supreme Court disagreed with the government’s stance, stating that it couldn’t label homosexuality and the concept of marriage equality as urban elitist, especially without supporting data. At this juncture, Senior Advocates KV Vishwanathan and Jayna Kothari shared the compelling stories of their clients, highlighting the inaccuracy of the government’s characterization.
During the hearings, a debate on gender took center stage as the Solicitor General of India, Tushar Mehta, argued that a person’s biological gender defined their gender. Chief Justice DY Chandrachud challenged this notion, emphasizing that the concept of biological gender was not absolute and depended on more than just physical characteristics. The discussion shed light on the complexity of defining gender.
Chief Justice Chandrachud stressed that Indian culture historically embraced inclusivity and that the influence of British Victorian morality had led to the exclusion of queer individuals. The court highlighted that Indian culture had a rich history of diversity and inclusiveness, and the imposition of Victorian morality in the 19th century led to the criminalization of homosexuality in India.
The Bar Council of India requested the Supreme Court to leave the issue of same-sex marriage to the legislative process. They argued that marriage had traditionally been seen as a union between a biological man and woman for procreation and recreation. They suggested that such a fundamental change should not be made through the judicial process and required broader consultations. The BCI believed that the legislature, being a reflection of the people’s will, was better suited to handle such sensitive issues.
A significant discussion revolved around inserting gender-neutral terms in the Special Marriage Act. This raised questions about the ages at which partners would be considered adults. Section 4 of the Special Marriage Act specifies conditions for marriage, with different age requirements for males and females. The debate led to considerations of using gender-neutral terms like “person” and the need for legal clarity in recognizing queer marriages in India.
In a noteworthy development, the Central Government agreed to form a committee to explore granting certain legal rights to same-sex couples without recognizing their relationship as a “marriage.” This was in response to the Constitution Bench’s request for options to ensure social security and welfare for same-sex couples. The government was open to issuing executive guidelines for financial security measures like joint bank accounts and life insurance nominations for same-sex couples.
Regardless of the court’s decision, the forthcoming judgment will undoubtedly leave a profound impact on the rights of the LGBTQIA+ community in India.