Supreme Court of India and a rainbow flag
Supreme Court of India and a rainbow flag

Marriage equality hearing concludes, SC reserves judgement

The five-judge Supreme Court Constitution Bench headed by Chief Justice DY Chandrachud concluded the hearing in the petitions on May 11, and reserved the matter for judgement.

The five-judge Supreme Court Constitution Bench headed by Chief Justice of India (CJI) DY Chandrachud concluded hearing in the marriage equality petitions on Thursday, May 11. The Bench has now reserved the matter for judgement.

A batch of 15 petitions was filed at the apex court seeking marriage equality, and the hearing went on for 10 days. While primarily demanding marriage equality for LGBTQIA+ persons, the petitions raise larger questions about the institution of marriage itself and how Indian laws pertaining to marriage interfere with the fundamental rights and personal liberties of individuals as guaranteed by the Constitution. Besides the CJI, the bench comprised Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha.

On Thursday, the last day of the hearing, the petitioners submitted their rejoinders and responses to the arguments of the government respondents and intervenors. Here is what happened in court on the final day of the marriage equality hearing.

‘Marriage rights for LGBTQIA+ people will not make it unviable for others’

Senior advocate AM Singhvi made submissions regarding the interpretation of the Special Marriage Act (SMA) and said that the petitioners were not seeking gender-neutral interpretations for every gendered word in the Act. He said that the terms that specifically address gendered imbalances of power and achieve substantive equality may not be changed. He also argued that civil unions will neither be a solution nor an equal alternative to marriage rights, as the former does not address the Constitutional anomaly presented by the exclusion of non-heterosexual couples from the institution of marriage.

Arguing along the same lines, senior advocate Raju Ramachandran said that gender-specific laws concerning men and women, including penal laws and religious personal laws, shall not be subject to any interpretive exercise.

Responding to senior advocate Rakesh Dwivedi’s argument that marriage has always been viewed by society as a man-woman union, Raju contended that it is violative of the equality principle in the Constitution. He also argued that the origin of the institution should not be tested, but the traditional reading of marriage should be questioned, as it is discriminatory towards same-sex couples.

Senior advocate KV Vishwanathan argued that the feasibility of an issue should not hold the court back from declaring that there is a right to marry, which is an essential right. He stated that the declaration, when made, shall be worked by the Parliament.

Senior advocate Saurabh Kirpal also made the same submission and argued that the non-feasibility of an issue was not cited before the court in any case as a defence to Constitutional examination, because it was not a barrier. He also contended that giving marriage equality to LGBTQIA+ individuals under the SMA will not render it unviable for others.

Further, he also submitted that the intention of the petitioners is to be equal citizens in the country and to have the same rights as everyone else. “Marriage is a vehicle to adopt and obtain that ideal. It is not merely marriage as a social institution that we want. The reason we want marriage is because it is a conglomeration of rights that the state gives you,” he argued.

Responding to the argument that any kind of reading into the SMA would go against the core of the Act, senior advocate Jayna Kothari argued that the core of the SMA is that it moves away from the sacramental nature to its contractual nature. “The core of SMA is freedom of choice in marriage… The [Parliament] debates show that even SMA was law for freedom of choice in marriage and reading it would be required for a Constitutional framework,” she argued, further contending that given that transgender persons can marry under the SMA after gender reassignment, the same right should be extended to all.

Senior advocate Menaka Guruswamy, appearing on behalf of the Delhi Commission for Protection of Child Rights (DCPCR), responded specifically to submissions related to same-sex parenting and adoption rights of same-sex couples made by the National Commission for Protection of Child Rights (NCPCR).

Citing a statement by the Indian Psychiatric Society, she said that with nearly 7,000 psychiatrists all over India, the largest society of mental health professionals in the country supported the decriminalisation of homosexuality in 2018, and has extended support to the current case also.

"There is no evidence to indicate that individuals of the LGBTQIA+ spectrum cannot partake in any of the above [parenting]. On the contrary, discrimination [which denies parenthood to LGBTQIA+ persons] leads to mental health issues," she argued. “I would hope that in the future when the state comes to argue for or against a case, it would locate its findings and opinions after talking to the community and relying on studies that have existed since the last three decades,” she stated.

During the course of the hearing, the bench also referred to a recent judgement passed in the Sri Lankan Supreme Court in support of the decriminalisation of consensual same-sex relationships.

The bench has reserved the judgement in the case.

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