Same Sex Marriage | Judiciary Not Equipped To Deal With Shades Of Gender Within LGBTQIA+ Spectrum, Let Parliament Decide: Centre To Supreme Court

“I understand the difference between gender and sex, and gender identity, and sexual orientation. But we are not going into that. But all Indian laws define ‘man’ and ‘woman’ in the conventional sense. When this is being debated for the first time, should it not go first to the Parliament or the state legislature? There is no value judgement, or stigma attached. The Parliament has accepted their rights of choice, sexual preference, autonomy, and privacy. The limited question here is, whether the right to marry, as a social institution, can be prayed for by way of judicial adjudication.”

A constitution bench comprising Chief Justice DY Chandrachud, and Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha was hearing a batch of pleas for the legal recognition of marriage between non-binary, non-heterosexual, or transgender persons.

The Solicitor-General told the Apex Court that a mere judicial declaration that LGBTQIA+ couples have a right to marry would beg the question of how those rights would be regulated. The right to marry, SG Mehta categorically stated, was not absolute, even among heterosexual couples who were statutorily bound by regulations relating to marriageable age, ceremonies to be performed, bigamy, prohibited relationships, grounds and process for dissolution of marriage, and many other aspects. “The right to marry does not include the right to compel the State to create a new definition of marriage,” SG added. “Only the Parliament is competent to do this and therefore, this is a matter best left for it to decide,” he urged.

In this connection, SG Mehta argued that the judiciary was ill-equipped to deal with the ‘varieties of situations’ that would arise as a consequence of ruling in favour of the petitioners seeking marriage equality. “Only the Parliament or state legislatures can envision the situations that may arise and provide for their regulation. It would be impossible for the court to conceive of all situations,” claimed the Solicitor-General.

To illustrate this point, he highlighted the number of gender identities that the LGBTQIA+ spectrum encompassed. He said:

“We say LGBTQIA+, where ‘L’ stands for lesbian, ‘G’ for gay, B for bisexual, ‘T’ for transgender, ‘Q’ for queer, ‘I’ for intersex, and ‘A’ for asexual. But we have not examined what the plus symbol represents. This is the core of the problem if the judiciary were to take over the function of regulating the relationship after recognising it as a socio-legal institution. There are 72 shades or variations, which is why we write the plus symbol. Please consider, even if you were persuaded to undertake an exercise of rewriting the law, how this court would deal with these varieties of situations.”

The SG contented that it would neither be prudent, nor possible for the court to grant an equal right to marry to an ‘unidentifiable’ class comprising various shades of gender identities.

“What is the source of the table on gender identities?” asked Chief Justice Chandrachud.

“I have checked from a couple of sources. The list of gender identities is consistent. However, I have mentioned the source in the footnote,” the law officer responded.

Not only did SG express his concerns about the court’s ‘inability’ to regulate queer marriage owing to the number of gender identities recognised within the spectrum, but he also pointed out that if such marriages were to be permitted, as many as 160 legislations would be affected, leading to ‘irreconcilable’ differences in the statutory framework of the country. He further argued:

“This exercise by the court would be restrained by four fundamental principles, namely, that is cannot change the character of a law, cannot substitute legislative intent which is otherwise manifest, cannot read words of larger amplitude in place of words of smaller amplitude, and finally, it cannot use a different lens for heterosexual couples, and another for non-heterosexual couples.”

In furtherance of his argument on the need for judicial restraint in this matter, the SGgeneral referred to a number of famous American cases, including a recent and controversial decision of the US Supreme Court to overturn its landmark judgement on abortion rights, i.e., Roe v. Wade. “Your point has been taken, but do not rely on Dobbs,” Chief Justice Chandrachud chastised before adding, “We have gone far beyond this case which held that women have no control over their own bodily decisions. This theory has been debunked long back in our country.”

Conceding, the SG clarified that the purpose of relying on Dobbs v. Jackson Women’s Health Organisation was not to support its view on women’s abortion rights (“I don’t support it myself,” Mehta hastily supplied), but to make a point about returning the power to the Parliament to take a decision that had ‘profound social implications’. The top law officer used the example of various countries where the introduction of marriage equality was done at the behest of the legislature. He argued:

“Wherever the legislature has stepped in, they have correspondingly amended other statutes. But note that none of the various statutes that would be affected have been challenged here. So, the court cannot make these changes.”

In response, Justice Bhat pointed out that there were nine cases, such as in Austria and South Africa, in which the legalisation of marriage among LGBTQIA+ couples had been achieved through judicial intervention. Although agreeing in part, the law officer contended that these cases either would not apply to the Indian context or were concerned with an express prohibition that was struck down through judicial review.

The examples of Latvia, for instance, would not be suitable because it issued directions to the legislature to formulate a law recognising marriage equality, whereas in India, in view of the doctrine of the separation of power, just a writ could not be issued to a legislative body, the SG said.

“No two constitutions are the same. When it comes to transplanting in an Indian context, principles that took birth in foreign soil, it cannot be done without extensive consideration of their relevance to the interpretation of our Constitution,” said SG Mehta. He quoted from the top court’s landmark decision in Kesavananda Bharti, “It is not a case of shutting out light where that could profitably enlighten and benefit us. But the concern is rather to safeguard against the possibility of being blinded by it.”

“Ultimately societal acceptance is one of the considerations for the recognition of any union. That can only be tested in the legislature,” he added.

Case Title

Supriyo v. Union of India | Writ Petition (Civil) No. 1011 of 2022