Same Sex Marriage | Will Not Deal With Marriage Equality In Personal Laws Now: Supreme Court

The ongoing legal proceedings pertaining to the petitions seeking legal recognition for same-sex marriage in India have left the entire nation in a state of anticipation. Today was the first day of the hearing before a Constitution bench comprising CJI DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha. The day saw arguments ranging from equality of the laws, privacy and dignity of the members of the LGBTQIA++ community, and the rights concurrent to marriage equality, among others. However, what was of pertinence was the ambit or canvas of arguments which the Court decided to hear in the upcoming days. At the very outset, upon questions being raised by the Solicitor General of India Tushar Mehta, who was appearing for the Central Government, on the maintainability of the petitions, the court clarified that for now, it would be limiting itself to the ambit of the Special Marriage Act and would steer clear of personal laws.

Centre Questions Maintainability of Petitions, Seeks to Implead States

Before delving deeper into the bench's discussion on whether it would deal with marriage equality in personal laws or not, it is important to take note of SG Tushar Mehta's arguments on maintainability. SG Mehta argued that the subject the court was dealing with was "creation of a socio-legal relationship of marriage" and the same was the domain of the competent legislature. He added that if the court still decides to hear the matter, it should implead all States as parties in the matter. He said–

"When the subject is in the concurrent list, we cannot rule out the possibility of one state agreeing to it and another state being against it. In case of states not being joined, the petitions wouldn't be maintainable. The debate which is to happen to conferring or creation of socio-legal institution - should that be the forum of this court or parliament?"

The court was not inclined to quash the petitions on the ground of maintainability with CJI DY Chandrachud interjecting the SG and stating that the nature of the SG's preliminary objection depended upon the canvas the petitioners opened up. He said–

"Once we have a picture on what is the canvas they're arguing on, we may tell them what is the canvas we want them to argue on."

Per contra, Senior Advocate Mukul Rohatgi contended that the SG's submissions did not hinge the maintainability of the petitions under Article 32. He added–

"I have a right to approach this court. I have a right to be heard. My grievance may be right or wrong, your lordships will decide upon that but we are persons who are of the same sex. We have, according to us, the same rights under the Constitution as the heterosexual group of the society. Your lordships have held that. The only stumbling block on our equal rights was 377. That is now gone. Criminality is now gone. The unnatural part or order of nature is gone from our statute. So therefore our rights are equal."

He also added that the right to approach the Supreme Court under Article 32 was itself a fundamental right. 

Post broad submissions by Senior Advocate Mukul Rohatgi, the bench noted that it had understood the canvas of the matter and had decided that it could steer clear of personal laws. CJI DY Chandrachud orally remarked–

"Now that we've understood broadly the canvas of the matter, we can at this stage, steer clear of personal law. It may not be necessary for the court to then get into personal law."

Can we deal with questions pertaining to Special Marriage Act now and leave personal laws for a better time? Asks Supreme Court

Senior Advocate Menaka Guruswamy, representing a petitioner who had sought an expansive reading of the Hindu Marriage Act to include queer marriages within its ambit stated–

"The Hindu Marriage Act is not an issue necessarily of personal law. It is a statutory law. We will demonstrate that. The origin of the Hindu Marriage Act, the Hindu code, did something that was not permitted in sacramental Hindu Law, which is, inter caste marriages, Sagothra marriages, inheritance..."

However, the bench did not seem eager to entertain arguments on marriage equality in Hindu Marriage Act at this juncture. CJI DY Chandrachud orally remarked–

"There may be some amount of sage wisdom in also going about our tasks in incremental manner. Because otherwise do we then confine ourselves only to Hindu Marriage Act? What about the Parsis, Jews, Muslims- there are a lot of communities. The Constitution itself and the law itself is evolving so the court has to be mindful that we're moving by process of interpretation. Perhaps, going incrementally, cover a canvas for the present, confine yourself to this canvas, and then allow parliament's perception to evolve with time. Because parliament is also responding to the evolution of society. We can't deny the fact that there is undoubtedly the legislative element also involved."

Justice SK Kaul supported the opinion of the Chief Justice and added–

"Sometimes incremental changes in issues of societal ramifications are better. There is time for everything. Therefore what was being suggested was- can we, for the time being, confine it only to limited issue, don't step into personal law issues. You can assist on how we can develop the notion of a civil union which finds recognition in our statute - the Special Marriage Act?"

To this, Guruswamy responded that marriage was not only a question of dignity but also a "bouquet of rights that LGBTQ people are being denied post (Navtej Singh) Johar". While highlighting the rights marriage ensured to a person, she said that if the community is granted anything less of the right of marriage, individual members of the queer community will have to come and litigate on individual issues. She said–

"Bank account, life insurance, medical insurance...I cannot buy SCBA medical insurance. This is the reality of how rights are exercised. Rights are exercised when you're able to protect your relationships. One facet of that right is the constitutional value of dignity, equality, fraternity. The other facet is the day-to-day business of life. When we look at law in India, most rights flow from this notion of blood relationships, i.e., either being born into a family or being married. That is the problem. If it is short of full marriage, it will mean that subsequently, not just Mr Rohatgi, but Mr Kirpal, me, we will keep coming back to court to litigate individual issues of discrimination. I am not able to nominate my partner for life insurance. These are not theoretical issues. This is our life. This is why we say marriage. Because that is the notion that the legal framework which is premised on common law understands and takes within its fold. So anything short - if it is a civil union, this correspondence will now start with insurance company, with banks, with hospitals, with wills, with estate duties, with anything that is pre requisite to be able to live a life outside a home, including buying that home."

However, Justice Kaul still did not seem satisfied and stated that even in the judgement in Puttaswamy, the court did find that there were nuances that came up later. He added–

"It may require more visits to court. We can't say. But we cannot say that it'll be possible to work out all possible nuances now. If you say you don't want to touch personal law, then the argument is limited. So can we in SMA, read "person" and leave everything else for a better time?"

The hearing will necessarily affect personal laws: SG Mehta

Upon court's insistence to not delve into the ambit of personal laws as of yet, SG Mehta argued that whether the court liked it or not the hearings would necessarily affects personal laws. Rebutting Dr Guruswamy's submission, he submitted that Hindu marriage Act was a codified personal law and even other religions such as Islam had personal laws. Justice Kaul interrupted his arguments and said–

"We're not getting into the personal laws."

SG Mehta still insisted upon his point and said–

"That's not the point. Somebody who is not Hindu can come here and say why did you not give me the same treatment, I want to be Hindu, I want to marry under HMA...Your lordships will have Hindus, Muslims- everyone will be affected. Therefore the central government very respectfully prays that states will have to be heard."

However, the bench refused to hear arguments on personal laws and asked the SG to confine his submissions to the discussion ongoing in court. Justice Kaul said–

"We're saying we're not going into the broader canvas. We're unwilling to go into personal laws. Therefore, they have agreed for the time being to argue on aspects which we're considering."

SG Mehta still continued his argument on personal laws to persuade the bench and said–

"Today your lordships may not go into personal law but the window of personal law will open. Entry 5, concurrent law is agnostic. It's the law of marriage. It's not Hindu, Muslim or Parsi. So I'm reiterating that my preliminary objection be taken first and you may issue notice to states."

The CJI then stated that the bench will reflect upon the same.