Same-Sex Marriages: What Government Of India, Petitioners Argued Before The Supreme Court

In a few hours from now, the Supreme Court is set to deliver its much anticipated judgment on a clutch of pleas seeking legal validation for same-sex marriages. A five-judge constitution bench headed by Chief Justice of India (CJI) D Y Chandrachud reserved its verdict on the pleas on May 11 after a marathon hearing of 10 days, that witnessed crucial arguments on the rights of the LGBTQIA+ community.

If legal recognition is granted, it will pave the way forward for the LGBTQIA+ community and their struggle for equal rights in a country that they have often faced discrimination in. The Supreme Court heard a clutch of twenty petitions filed by same-sex couples, transgender persons and LGBTQIA+ activists that challenged the current marriage laws on the grounds that they do not recognise non-heterosexual marriages, thus perpetuating discrimination against the LGBTQIA+ community. 

Here are the top arguments made during the historic battle for marriage equality in India:

Marriage brings with it a bouquet of rights

The petitioners argued that marriage brings with it several rights, privileges, and obligations that are “bestowed and protected by the law”. These rights include legal benefits such as tax benefits, medical rights, inheritance, adoption, among others.

Senior advocate Maneka Guruswamy, arguing in support of the queer petitioners, said that marriage is “not only a question of dignity but a bouquet of rights that LGBTQ people are being denied”.

The Centre has said the court cannot give additional rights to non-heterosexual marriages under the Special Marriage Act because the “legislative intent” of marriage in India has always been about the “relationship between a biological man and a biological female”. However, the Centre did agree to constitute a committee to examine whether certain legal rights could be granted to same-sex couples, without legal recognition of their relationship as a "marriage". 

Arguments on Special Marriage Act 

During the hearings, the top court observed that it will not go into personal laws and will only consider petitions under the Special Marriage Act (SMA). Since personal affairs like marriages, succession, and divorce are governed by laws specific to religions in India, different communities have different personal laws. There also exists a secular SMA under which marriages can also be registered. Most of the petitions considered either the Hindu Marriage Act (HMA) or SMA.

One highlight under the discussion on SMA was the discussion about inserting gender-neutral terms in the Act. Senior Advocate Mukul Rohatgi appearing for the petitioners argued that the SMA, 1954 should be interpreted in a way so as to read marriage as between spouses instead of “man and woman”. However, judges pointed out the dilemma of having dual ages (18 and 21) if gender-neutral terms were employed. But the discussion raised questions on the need for gender-neutral legal language.

However, it also became clear during the course of hearings that tweaking SMA might not be enough as there are others laws that govern divorce, adoption, succession, maintenance and other related issues which mostly come under the ambit of religious personal laws.

Centre's ‘urban elitist’ debate

The Centre, in its submissions before the top court, questioned the maintainability of the petitions and said that the same-sex marriage petitions represent "urban elite" views. It said that the legislature will have to take into account the “broader views and voice of all rural, semi-rural and urban population, views of religious denominations keeping in mind personal laws as well as and customs governing the field of marriage together with its inevitable cascading effects on several other statutes". 

The Supreme Court rejected the Centre’s view saying it did not have any data to prove its argument. Just because more people from cities are coming out of the closet, the top court said, does not make it an ‘urban elitist’ concept.

Solicitor General of India Tushar Mehta also contended that seeking such recognition under SMA amounts to seeking recognition of 'prohibited relationships'. He said someone might tomorrow seek recognition of incestuous relationship.

Civil unions might not be enough 

Petitioners seeking recognition of same-sex marriages argued that the state had a duty to enable it and that it did not go against the "grain" of Special Marriage Act, 1954. Moreover, Senior Advocate AM Singhvi argued that civil unions short of marriage, as are permitted in other countries, could not be a solution. 

Singhvi said that civil unions are not an equal alternative and do not address constitutional anomalies presented by excluding non-heterosexual couples from the institution of marriage. 

By definition, a “civil union” refers to the legal status that allows same-sex couples specific rights and responsibilities normally conferred upon married couples. 

Impact on children

The National Commission for Protection of Child Rights (NCPCR) moved the Supreme Court against the legalisation of same-sex marriages, claiming that children raised by same-sex parents may have a limited exposure to the traditional gender role models. On the other hand, Delhi Commission for Protection of Child Rights (DCPCR) has supported pleas seeking legal recognition of same-sex marriages. 

The application among other things, submits that from a psychological point of view, "multiple studies on same-sex parenting have demonstrated that same sex couples can be good parents, or not, in the same manner that heterosexual parents can be a good parent or not," the report said, while highlighting examples of more than 50 countries that allow same-sex couples to legally adopt children.

Issuing directions to the central and state government, the DCPCR said that they must take steps to create public awareness that same-sex family units are as “normal” as heterosexual family units, and - specifically - that children belonging to the former are not “incomplete” in any way. 

During the hearings, Mukul Rohatgi, one of the lawyers appearing on behalf of the petitioners, said society sometimes needed a nudge to accept LGBTQIA+ people as equals under the constitution and if the top court legalised same-sex marriage, it would drive acceptance of the community.