Marriage Equality Petitions | Court Has To Go By Constitutional Mandate, Not Popular Morality: Supreme Court

While hearing the marriage equality petitions today, CJI DY Chandrachud orally remarked that the court had to go by constitutional mandate and could not act based on popular morality.

The bench comprising CJI DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha was discussing the Centre's proposition of constituting a committee to examine whether certain legal rights can be granted to queer couples, without legal recognition of their relationship as a "marriage". However, the petitioners were not satisfied with the proposition and argued that while administrative tweaking of laws to make them queer-friendly would be welcomed, the queer community wanted an unequivocal declaration of their marriage to be legally recognised at par with heterosexual marriages. 

Senior Advocate Saurabh Kirpal, highlighting the wishes of the community said–

"99% of the people that come up to me, they all say only one thing- that they want to get married. The consensus within the community is that they wish to have marriage. In all the multiple meetings we have, de hors some academic discussions of people who say that no marriage is a heteronormative institution, it's not necessary; the vast majority of the young people all said we want to get married."

On similar lines, Senior Advocate Menaka Guruswamy argued–

"Young people in our country want marriage. I don't say this as an elite lawyer. I say this as someone who has met these young people. Do not let them experience what we have experienced."

At this juncture, CJI DY Chandrachud orally remarked that the argument raised came with a constitutional problem. He said–

"If we go by what young people feel, as a constitutional court, then we will be subject to volumes of tomes on what other people feel. The court has to go by the constitutional mandate. We don't go by a popular morality."

The discussion on Centre's proposition was followed by the submissions of the Attorney General for India R Venkataramani. The AG argued that howsoever enlightened the court or the counsels were on the issue, it required practical outcomes and an incremental approach. He stated that the present case was quite different than the judgement in Vishakha v State of Rajasthan (where the court framed guidelines to prevent sexual harassment at the workplace) as there existed no "vacuum" in the Special Marriage Act as it stood. He said–

"The course adopted in Vishakha cannot be replicated here both for doctrinal and practical reasons. No vacuum can be attributed to the Special Marriage Act."

He urged for the suggestions by the government to be looked at and added that the same did not mean that the court would not deliberate upon the subject but it was important to know where the lines were to be drawn. Stating that the the law in the Special Marriage Act was not ex facie unconstitutional for not recognising homosexual unions, he argued that the question of reading down of the statute did not arise. He also added that queer couples were not intended to be a part of the Special Marriage Act. He said–

"This would not just involve tweaking of this law but the whole host of legislations. Absence of reference to all possible unions of persons as marriage cannot be construed as a legal and a constitutional omission."

The AG's submissions were followed by the arguments of Senior Advocate Rakesh Dwivedi who commenced his arguments by stating that while the word "spouse" was grammatically flexible, in the context of the Special Marriage Act, the word "spouse" means husband or wife. He stated that there existed no fundamental right to marry and since the context of the Act was "heterosexual", gender neutral terms could not be used to substitute gendered phrases in the Act. He added–

"You set up your claim based on choice, autonomy, dignity etc. Is there not dignity for heterosexual? Because husband and wife relationship is a meaningful relationship since antiquity. When we say that I take you as a husband or wife, you want us to say that I take you as a spouse?...While claiming dignity, you should not inflict indignity, whether traditionally, culturally, historically, socially- these are valuable things. They may not have meaning to people who don't attach value to it...Don't dilute the status with tinkering."

The next limb of his arguments was based on how preparedness of society to accept change was also equally important and that it was not right to rush in such situations. In this context, he said–

"Who's stopping them? Marry! There is no law. I would be very happy if all these laws are taken away. But these laws are there to protect the interests of women and children because of the command of Article 15(3) which says state can make a special provision. Dignity has nothing to do with marriage. My marriage is not registered. So do I not have dignity? I'm not looking for any recognition from any law. We never depend on state."

Arguing that the matter was all about social acceptance, which could only be provided by the parliament framing appropriate laws, he cited the example of women rights and how long their movement went for before they were granted these rights. He argued–

"Women got the right to maintenance in 1937. It was blown up into a bigger right in 1956. They became co-parcener in 2000-2005. Even today they don't have rights under Agricultural Reforms Act."

He added that the marriage equality petitions were for a larger cause and not one person's right to marry. Stating that such causes take time to succeed, he said that the Parliament should be deciding the next step. He said–

"It's a cause for which you're battling. All causes take time to succeed. And all causes have their martyrs. It's not an individual cause- that I left the world without getting married. This is a cause which requires social accommodation. The parliament, which has the pulse of the people in hand, is in the best position to decide when to take the next step, what should be the next step, and how should it be brought about. Don't force it. Because the whole social fabric can be ripped apart. We don't know what consequences will happen. Slowness is the way forward in such matter, not speed. The parliament has committees, law commission - all these tools are available to parliament."

The arguments will continue next week.

Case Title: Supriyo v. UoI WP(C) No. 1011/2022 PIL