Same Sex Marriage- 'Parliament Has Power To Legislate On Marriage & Divorce, How Far Can Courts Go?': CJI DY Chandrachud Asks Petitioners

Chief Justice of India DY Chandrachud today reminded the petitioners seeking legal recognition of queer marriages in India that Parliament is empowered to legislate on the subject of marriage and divorce and therefore inquired as to the scope of interference by the Supreme Court in such matters.

"You cannot dispute that Parliament has the powers to interfere with the canvas covered by these petitions. Entry 5 of the concurrent list. It specially covers marriage and divorce. So the question really is which are the interstices left in which this court can interfere...The test really is, how far can the courts go?" the CJI asked.

He added that even in cases like Vishakha v. State of Rajasthan whereby guidelines were issued to fill the lacunae in law in dealing with incidents of sexual harassment against women at workplaces, "the framework set out by the court has to be fleshed out by the legislature".

The remarks were made in response to arguments of Senior Advocate Maneka Guruswamy that government cannot come to court and say that this is a matter of the Parliament. She claimed that when Fundamental rights of a community are violated, they have the right approach the Constitutional Court under Article 32.

"When you are casting a positive obligation on the lawmakers, is it possible to presuppose the creation of law? How do we weave out an obligation or a mandate?" Justice Bhat asked.

Guruswamy responded, "The basic structure also belongs to us. We are also part of its soul. The parliament cannot be the reason to exclude us from this guarantee under the constitution."

The Constitution bench Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha was hearing the batch of petitions seeking legal recognition for same sex marriages in India.

Guruswamy submitted that petitioners do not seek any special treatment but, a mere "workable interpretation" of the Special Marriage Act to recognize their relationships.

However, CJI and Justice Bhat opined that Special Marriage Act and Personal laws are interconnected. Hence, any changes in the SMA will have some impact on personal laws as well.

"If we read into the SMA, there will have to be changes in other personal laws as well. There is no shying away from this," Justice Bhat said. The CJI also remarked, "The SMA carved out an exception, by being neutral to religion. But Section 21(A) of SMA, indicates that all other parts of marriage are governed by personal law. There is no denying the link between SMA and personal law."

While Guruswamy agreed, she added that all this would only be consequential. "It will follow," she said.

The bench also enquired if the Petitioners represented the interests of entire community. It indicated there may be some persons who may want to "preserve" their present way of life.

To this, Guruswamy responded, "Those who wish to participate in this new definition of relationship can participate. Those who don't want to, need not. Within the community, there may be people who may not want to participate. The ability to have the choice is an act of Constitutional principle and 21A of SMA gives all couples that choice. We don't ask for anything more than that."

Right to Have One's Family Recognized

Senior Advocate Jayna Kothari appearing for one of the petitioners, a transgender person seeking marriage equality for all and not just same sex couples, urged that every individual has a fundamental right to family and that recognition of such family should fall under Article 21 of the Constitution, irrespective of their gender identity or sexual orientation. She submitted that family goes to the core of one's being

"Our families give us not only love and care but also psychological and economical support. Can we not have the right to have our families recognised? Transpersons are already having families - they're in relationships, adopting children but these families are not being recognised. Is a family different just because your gender identity is different? Are these not the same values that all of us want at the end of the day? Therefore, I argue that this should fall under Article 21" she said.

She added that the Special Marriage Act and the manner in which it is construed presently, by focusing only on men and women, denies transgender persons the right to marry and have a family solely on basis of their gender identity. That amounts to Article 15(1) discrimination on basis of sex, she argued.

Right To Form “Intimate Association” 

The Constitution bench also heard Senior Advocate Anand Grover appearing for two couples, seeking recognition of their marriage under Special Marriage Act and Foreign Marriage Act respectively. He emphasized on the "Intimate Association" jurisprudence in the US which permits formation of associations— cooperative societies to trade unions, which are larger groups and intimate unions of a romantic or marital nature.

Drawing analogy from this, Grover submitted "intimate associations" of queer couples are encapsulated under Article 19(1)(c) [to form associations or unions], subject to reasonable restrictions and "This right of intimate association can be read into Article 21. Apart from privacy, autonomy, and dignity, this can also be read into Article 21," he said.