Same-sex Hearings: How Far Will The Courts Go?

“The legislative drafting (of the Marriage Acts) which was done 50-70 years ago cannot stop what I’m constitutionally entitled to get.”

These were the words of Senior Advocate Mukul Rohatgi, appearing for petitioners seeking the validation of same-sex marriages in the Supreme Court this April. The ‘constitutional entitlements’ that Rohatgi speaks of, which Sr Adv Menaka Guruswamy memorably described as a “bouquet of rights” includes, but is not limited to, the right to marry a person of the same sex, register the marriage, nominate the spouse for life insurance, adopt children together, inherit property, manage a joint bank account and include the partner in one’s will.

As of today, India’s queer (LGBTQIA+) population is not legally entitled to such rights and protections even though the struggle for their recognition has been kept alive in the country’s courts and legislature for decades. Beginning with the AIDS Anti-Discrimination Movement filing the very first petition seeking the decriminalisation of homosexuality to the clutch of petitions for ‘marriage equality’ currently being heard, the legal basis for “marriage equality for all,” in the words of Sr Adv Jayna Kothari, has been paved in steady increments.

Here is a brief chronology of the major milestones in queer litigation in India.

1861: Introduction of Section 377 in the IPC penalising intercourse “against the order of nature“

1978: SC legalises live-in relationships but with caveats

1994: ‘AIDS Bhedbhav Virodhi Andolan’ files first petition in Delhi HC challenging 377

2001: Naz Foundation petitions Delhi HC to legalise homosexual intercourse

2009: In a historic judgment, Delhi HC overturns the 150-year-old Section 377

2012: SC reverses 2009 Delhi HC judgement. Section 377 is back

2014: NALSA happens. Transgender people get the right to self-identify their gender and avail reservations

2014: SC upholds Right to Privacy as a fundamental right, laying ground for 377 to be read down

2018: Section 377 is ruled as unconstitutional by SC. In effect, homo­sexual intercourse is no longer a criminal act

2022: Petitions are filed in SC seeking recognition of same-sex marriages

2023: SC begins hearings of 20 petitions seeking marriage equality

The opposition has been just as steady. During the ongoing hearings, Solicitor General Tushar Mehta, appearing for the Centre, repeatedly questioned the maintainability of the 20 petitions on the grounds that deliberations on legal changes to the institution of marriage must be left to the states, not the courts. The Bar Council of India (BCI) quickly followed suit and passed a resolution requesting the same. While Mehta argued that the petitions reflected an “urban elitist view,” the BCI viewed the entire judicial exercise as one that was “likely to tinker with the fundamental social structure” of India. Support for the Centre’s stance poured in from all quarters. The Jamiat-Ulama-I-Hind, for example, stated that notions of same-sex marriage originated from western culture and must not be imposed on India. The National Commission for Protection of Child Rights (NCPCR) opposed the conferral of adoption rights on same-sex couples. Interestingly, the Delhi-CPCR batted for the petitioners, emphasising the need for a gender-neutral approach towards issues concerning adoption, maintenance and custody.

On Day 3 of the hearings, Sr Adv Raju Ramachandran, countered the Centre’s “urban elitist” remark by reiterating details of the two petitioners he was representing, where Petitioner 1 was Kajal—a Dalit woman from a town in Punjab working as an assistant in a bakery and Petitioner 2, was Bhavna, her partner, from an OBC community in Haryana and working as an accountant. Ramachandran argued that the petitioners were by no means the “urban elite” and that the recognition of their marriage is an important protection to them, clutching at the heart of the issue—the equal right of queer couples to legal protection that is granted to their heterosexual counterparts.

Such protection is currently being sought under the Special Marriage Act (SMA), a secular legislation drafted for the benefit of inter-faith and inter-caste couples in 1954.  In 2020, a petition was filed in the Delhi High Court by Abhijit Iyer-Mitra who argued that the Hindu Marriage Act, 1955,  in requiring “any two Hindus” for a marriage, does not distinguish between heterosexual and homosexual marriages in its wording. The petition had noted that the SMA, too, did not prohibit same-sex marriages in its wording.

So far, advocates arguing on the side of the petitioners have alluded to the changing nature and transformative potential of such legal enactments where there are inherent provisions to expand definitions with a view to include those in urgent need of rights and protections. Guruswamy argued that for the time being, the petitioners sought only a declaration that the SMA should apply to same-sex couples while giving them the choice to choose or relinquish their faith.  In response, the Chief Justice of India, DY Chandrachud, who is presiding over the five-judge bench, wondered if this inclusion of same-sex marriages in the SMA meant that a “non-religious marriage framework” needed to be created from scratch.

It is Day 6 of the hearings. The petitioners have exhausted their preliminary arguments and it is the Centre’s time to shine. Mehta maintains that the legal recognition of same-sex marriages would impact personal law, and therefore must be left to Parliament to legislate upon. He warns the Bench that it would “find it difficult to deal with the shades of gender within the spectrum,” and the State and the Court engage in understanding the meanings of words—gender queer, hijra, inter-sex, lesbians and gays. The debates will continue.

This issue of Outlook hosts a diversity of arguments made for and against the legalisation of same-sex marriages with a view to understanding what is at stake for everyone involved.

(This appeared in the print as 'How Far Will The Courts Go?')