Five years after the decriminalisation of homosexuality, the Supreme Court is yet again at the cusp of an epochal moment as it is set to deliver the judgment on a clutch of petitions seeking legal recognition of same-sex marriages on Tuesday.
The Constitution Bench of the Supreme Court would convene at 10:30 am to pronounce its judgment. The bench is headed by Chief Justice of India (CJI) DY Chandrachud and also comprises Justices SK Kaul, SR Bhat, Hima Kohli, and PS Narasimha.
Earlier, the Supreme Court clubbed all the petitions seeking recognition of same-sex marriages in different high courts of the country and transferred them to itself in January. Then, hearings began on April 18 and went on for 10 sessions. The Apex Court reserved the judgment on May 11.
While the petitioners sought same-sex marriage rights under Hindu Marriage Act (HMA), 1954; Special Marriage Act (SMA), 1954; and Foreign Marriage Act (FMA), 1969, the SC only took the case related to the secular SMA instead of personal laws like HMA that are specific to religions.
The Bharatiya Janata Party (BJP)-led government has opposed petitions on the grounds that such recognition would "create havoc" in the society and that the petitioners are the "urban elite" and do not represent the majority of the Indian population.
It is not just the BJP-led government of Prime Minister Narendra Modi that has opposed same-sex marriages. Hindu and Muslim religious organisations have also come out in opposition to the pleas. While Puri Peeth Shankaracharya Swami Nischalananda Saraswati termed same-sex marriages a "blot on humankind" and called for a rejection of any court order in its favour, Muslim body Jamiat Ulema-i-Hindi said that the "prohibition on homosexuality is undisputed and established" in Islam and that the "concept of same-sex marriage goes to attack the family system rather than making a family through this process".
Arguments for and against same-sex marriages in SC
In the 10 days of hearings, the Supreme Court heard the argument of the petitioners as well as the government that opposed same-sex marriages.
While Senior Advocate Mukul Rohatgi argued that same-sex couples have a fundamental right to marry, Sr. Adv. Abhishek Manu Singhvi said that such recognition could not be limited to same-sex couples but should be expanded to the broader queer community. Rohtagi relied on the gender-neutral phrasing of SMA to press for legalisation of same-sex marriages by highlighting that the law spoke of marriage between "any two persons".
Sr. Adv. Menaka Guruswamy argued that mere recognition of same-sex marriages would not do but their everyday activities should also be addressed, such as their ability to get insurance, buy houses, open bank accounts, etc.
Solicitor General Tushar Mehta said that the case was beyond the scope of the Supreme Court and fell within the domain of the Parliament. He also said that the intent at the time of making SMA was to address marriage between a biological man and woman, to which CJI Chandrachud responded by saying that there is nothing as an absolute man or woman.
Sr. Adv. K.V. Vishwanathan said the argument that same-sex marriages could not be legalised as same-sex persons could not produce children is not valid. Vishwanathan argued that procreation can be a part of marriage, but not an integral part of it. Sr. Adv. Sourabh Kirpal argued that homosexual persons are inherently entitled to fundamental rights.
Continuing the government's charge against same-sex marriages, SG Tushar Mehta argued that around 160 laws would be affected if same-sex marriages were legalised and around 72 gender identities would need to be included if the broader LGBTQI+ community is included in the court's judgment. Therefore, he argued, it should be the Parliament that should decide the issue and not the Apex Court.
The National Commission for Protection of Child Rights (NCPCR) opposed same-sex marriages by saying that while the concept of gender may be "fluid", the concepts of mother and motherhood are not. It argued that child welfare would not be served in the absence of heterosexual parents. The Delhi Commission for the Protection of Child Rights (DCPCR), however, opposed NCPCR's stand and stated that there was no evidence to say that same-sex marriages had any adverse effect on adopted children.
Beyond the Supreme Court judgement
With its judgment on the legal validity of same-sex marriages, the Supreme Court would also address several other questions:
1. What's the extent of judicial interpretation in extending civil liberties and personal freedoms?
2. Does the Constitution of India allow for a non-heteronormative understanding of marriage?
3. Can the Supreme Court stretch the law's interpretation in the name of the larger good to the extent that it ends up altering the character of the law?
4. Does religion not have a scope of same-sex marriages as the Supreme Court only took up pleas under the secular Special Marriage Act (SMA) and not the Hindu Marriage Act (HMA) and other religion-specific personal laws?
At Outlook, we have explored these questions in depth. In our 11 April 2023 issue, we looked at how Indian family values appeared to be pitched against the idea of love as same-sex marriages faced social opposition.
In her piece, Ramya Maddali explored how far the courts could go to address the question of same-sex marriage rights.
Rakhi Bose interviewed lawyer Utkarsh Saxena for the issue. The gay lawyer, who is part of the movement to seek legal validity for same-sex marriages, talks about being gay in India and explains his legal approach while also touching on the societal aspects of being queer.
In a view from the 'other side', Vinod Bansal of the Vishva Hindu Parishad (VHP) wrote about why same-sex marriages should not be legalised. He argued that it would cause cultural mayhem and termed same-sex marriage as "immodest, unnatural and anti-cultural vices" that are essentially a Western import.
Beyond the issue, we have explored the legal movement of marriage equality. Madhur Sharma traced how the law stands on the question of same-sex marriages, how different petitioners have framed their arguments, and what hurdles remain in front of them.
In a thought-provoking piece, Ayanabha Banerjee wondered whether marriage is essential at all and highlighted that not everyone in the queer community is on the same page when it comes to marriage.
As the Supreme Court decides on the question of same-sex marriages, take a look at some of the stories around the issue that Outlook has covered over the years.
