Marriage Equality Case: Key Highlights From The Landmark Hearing Before Supreme Court

The Supreme Court is set to deliver its long-awaited judgment on a batch of petitions seeking legal recognition for queer marriages tomorrow. A five-judge bench, led by Chief Justice of India DY Chandrachud and comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, had started hearing the petitions on April 18, 2023. After rigorous deliberation, the bench reserved its judgment on May 11, 2023, setting the stage for a decision that holds profound implications for the LGBTQIA+ community and their quest for equal rights in India.

The crux of the matter revolves around twenty petitions filed by same-sex couples, transgender individuals, and LGBTQIA+ activists. These petitions collectively challenged the provisions of the Special Marriage Act 1954, Hindu Marriage Act 1955, and the Foreign Marriage Act 1969. Specifically, they contended that these legislations, in their current form, do not recognize non-heterosexual marriages, thus perpetuating discrimination against the LGBTQIA+ community. 

As the nation eagerly anticipates the Supreme Court's decision, we take a closer look at the major developments that have characterized this historic legal battle for marriage equality in India.

I. Centre Challenges Maintainability Of The Petitions

At the outset, the Centre urged the Apex Court to dismiss the batch of petitions on grounds of maintainability. It argued that marriage, a socio-legal institution, could only be created, recognized, and regulated by the competent legislative body under Article 246 of the Indian Constitution. The Centre contended that courts lacked the authority to create or recognize marriages through judicial interpretation or legislative adjustments. Notably, Chief Justice DY Chandrachud questioned the validity of this objection, emphasizing that its nature depended on the case presented by the petitioners. The CJI stated– "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."

II. Court States It Won't Touch Personal Laws, Limits Challenge To Ambit Of Special Marriage Act

Before commencing the hearing, 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. Thus, the challenge pertaining to the Hindu Marriage Act was not taken up. Here, both the CJI and Justice SK Kaul argued for incremental change, suggesting that the Court should focus on a limited issue without entering the realm of personal laws. Justice Kaul remarked– "Sometimes incremental changes in issues of societal ramifications are better. There is time for everything."

III. Centre States Pleas For Marriage Equality Represent Views Of "Urban Elitists", Supreme Court Disagrees

In its second counter affidavit, the Centre, while contending that marriage was "an exclusively heterogenous institution", argued that those seeking marriage equality in India merely represent "urban elitist views for the purpose of social acceptance" and that the popular will of people was that marriage be recognised solely amongst heterosexual individuals. The Supreme Court disapproved of the Centre's stand and remarked that it could not dub homosexuality and the idea of marriage equality as an "urban elitist" concept, especially in the absence of any data to back this claim. At this juncture, Senior Advocate KV Vishwanathan shared the inspiring journey of his client, Zainab Patel, a transgender woman who was disowned by her family and forced to beg on the streets. Senior Advocate Jayna Kothari joined in spoke of her client Akkai Padmashali who was also thrown out of her house at the age of 15 years. Both the counsels stated that it was incorrect to call their clients' views as those of the "urban elitists". 

IV. Supreme Court Talks About Gender Fluidity

A discussion about gender also took center stage during the hearings as the Solicitor General of India Tushar Mehta argued that biological gender defined a person's gender. This was in the context of the Special Marriage Act using the words "man" and "woman".

Chief Justice DY Chandrachud challenged this notion, stating that the concepts of a biological man and woman were not absolute and depended on more than just physical characteristics. However, SG Mehta disagreed and said– "Biological man means biological man, there is no notion." To this, CJI DY Chandrachud said– "There is no absolute concept of a man or an absolute concept of a woman at all. It's not the question of what your genitals are. It's far more complex, that's the point. So even when Special Marriage Act says man and woman, the very notion of a man and a woman is not an absolute based on genitals."

V. Indian Culture 'Extraordinarily Inclusive', Remarked Supreme Court 

During the hearings, Chief Justice DY Chandrachud also emphasized that Indian culture had a long history of inclusivity, and the British Victorian morality had influenced the exclusion of queer individuals. The Court highlighted that Indian culture was inherently diverse and inclusive, and the imposition of Victorian morality in the 19th century led to the criminalization of homosexuality in India.

VI. Bar Council Of India Requested Supreme Court To Leave Issue To Legislative Process, Stated That 99.9 % People Opposed To Same-Sex Marriage

The Bar Council of India requested the Supreme Court to leave the issue of same-sex marriage to the legislative process. They argued that marriage had traditionally been viewed as a union between a biological man and woman, with procreation and recreation as its primary purposes. They suggested that such a fundamental change should not be made through the judicial process and required broader consultations. Stating that "ever since the inception of human civilisation and culture, marriage has been typically accepted and categorized as a union of biological man and woman for the twin purpose of procreation and recreation”, the BCI said that it would be "catastrophic" to overhaul something so fundamental through the judicial process. The legislature, being truly reflective of the will of the people, is best suited to deal with such sensitive issues added the BCI. 

VII. Discussion On Insertion Of Gender Neutral Terms In Special Marriage Act

Another highlight was a discussion about inserting gender-neutral terms in the Special Marriage Act. This discussion resulted in the Constitution bench being faced with a conundrum as to which partner would be aged 18 years and who would be 21 years old as per the provisions of the Special Marriage Act. Section 4 of the Special Marriage Act stipulates conditions relating to solemnization of marriages. Sub-section 3 states that the male ought to have completed the age of twenty-one years and the female the age of eighteen years. Senior Advocate Mukul Rohatgi initially suggested that Section 4 could remain unchanged, with different ages for males and females (21 for males and 18 for females). However, Justice Hima Kohli and Justice Ravindra Bhat expressed concerns, emphasizing the need to move beyond male and female distinctions. Rohatgi then proposed using a gender-neutral term like "person" in the provision, but the judges pointed out the dilemma of having dual ages (18 and 21) if gender-neutral terms were employed. Justice Bhat questioned whether the Act should be gender-neutral overall but retain male and female distinctions in this particular section. Rohatgi concurred with the judges, explaining that maintaining different ages (18 and 21) for males and females was necessary. He then mentioned the existence of a proposed bill to increase the female age requirement from 18 to 21, which would resolve the issue once and for all.

This discussion brought attention to the need for clear, thoughtful legal language in the ongoing quest for recognizing queer marriages in India.

VIII. Centre Agrees To Examine Issue Of Granting Certain Rights To Same-Sex Couples Without Legal Recognition As Marriage

In a significant development, the Central Government agreed to constituting a committee to examine whether certain legal rights could be granted to same-sex couples, without legal recognition of their relationship as a "marriage". This came as a response to the Constitution Bench asking SG Tushar Mehta to get instructions from the Government on whether certain rights can be granted to same-sex couples to ensure their social security and welfare. The bench had asked if any executive guidelines could be issued so that same-sex couples can undertake financial security measures such as opening joint bank accounts, nominating partner in life insurance policies, provident fund etc. The Centre was agreeable to the same.

Regardless of the outcome of the case, the judgement which comes out tomorrow will undoubtedly leave a lasting impact on queer rights in India.

Case Title: Case Title: Supriyo v. Union of India | Writ Petition (Civil) No. 1011 of 2022 + connected matters