Day-5 of the hearing began as Nandi argued supporting equal marriage rights. Nandi disagreed with Dr. Singhvi’s claim that 99.9% of the population is gender binary. 2011 census itself showed that there are at least 4.8 million non-binary people in India. And it is an underestimate because many people are not ready to publically identify as non-binary. L So that is a large population. She illustrated that the Transgender Act already allows non-heterosexual marriages. For example, for applying for gender reassignment, one of the options of required documents to be submitted is a marriage certificate. And one of the people who can sign in the form is the spouse of the person who is undergoing gender reassignment. This inherently means that non-heterosexual marriage is allowed by law.
Unlike other advocates, Nandi argued that gender-neutral words like ‘spouses’ shouldn’t be used; because the special provision given to women making it gender-neutral will make it difficult for them to claim the benefits. She also was agitated that with Special Marriage Act, Foreign Marriage Act to be revised too.
Arundhati Katju started an argument with Nandi. On the Day-4 of the hearing, there was a question about the Special Marriage Act overlapping with personal law, especially section 21A of the act (21A. Special provision in certain cases.―Where the marriage is solemnised under this Act of any person who professes the Hindu, Buddhist, Sikh or Jaina religion with a person who professes the Hindu, Buddhist, Sikh or Jaina religion, section 19 and section 21 shall not apply and so much of section 20 as creates a disability shall also not apply. This means that the person can be considered as their parental family.) But the court can’t decide on every question in one go. It is true that other statutes related to the Special Marriage Act are complex. LGBTQ+ people will come to court, not just the Supreme Court, but to family courts, civil courts, and high courts if any dispute arises, just like heterosexual couples do. She said “What we ask today is the right to be not different” All the differences vanish with an amendment to one statute (Special Marriage Act)
In the case of section 21A, if both of them are Hindus, the Hindu Succession Act will be applied. Considering various aspects of this matter, for many years that all aspects of our questions that may arise before the court are not clear to us today as they are not in any case. The court has time and again gone back to the institution of marriage as codified under various acts that are read in various nuisances as time pass.
Justice Ravindra Bhat responded to the argument. The Constitutional bench can never isolate one provision. When an enactment is there, the organic whole has to be seen in the context of a challenge to the whole provision. So to isolate one wouldn’t be in coherence with the approach of this court. That would be to leave things half-done. Therefore, how it can be applied has to be decided in one go. Your statement is that there are battles to be fought later, but the duty of constitutional obligation won’t allow the bench to do so.
Katju replied, “That is right. As a matter of constitutional explications, the constitutional underpinning must be taken through a logical end. With reference to 21A so far only one case from 1984 has posed a challenge the 21A. As of now, it doesn’t appear to be a problem.” Katju presented a history of the concept of ‘special marriage’. In 1850 Caste Disabilities Removal Act was introduced which allowed people to change religion. In 1872 Old Special Marriage Act was introduced. It was majorly because the members of Brahmo Samaj argued that they were not Hindus and require some kind of marriage legislation. The Government then felt a need that no community can be without a law of marriage. This act allowed people to give up one’s religion and therefore it is a secular law. in 1923 Act 30 was introduced which amended Special Marriage Act. 2 provisions were changed on who could marry under the act and restrictions to personal law applied. It added that one or the other could be following one’s own religion.
Until the Hindu Marriage Act of 1955, this was the only law for any inter-caste marriages. The current Special Marriage Act was introduced in 1954, during which Hindu Marriage Act was already in discussion and the makers of the Special Marriage Act knew that there would be personal law being made that unifies civil law for Hindus. Inter-caste and inter-gotra marriage were permissible under Hindu Marriage Act. So, the restriction on personal law was lifted. In 1976, Marriage Laws Amendment Act was passed, and section 21A was added. It gave a possibility of rejoining with parental family.
As far as the application of personal laws is concerned, couples who marry within their faith (may it be LGBTQ+ couples), those statutes which are assumed as applying under section 21A will continue to apply. It means that a Hindu person can continue in their faith despite whom they get married to. In the last 50 years, this hasn’t created any major difficulty. It wouldn’t create any major problems with LGBTQ+ marriages too. Minute questions may arise. But the absolute exclusion of LGBTQ+ is a bigger issue. The Government’s argument that LGBTQ+ marriages create havoc with personal law is baseless. The problems can’t be presumed.
Katju gave an emotional speech. “We are part of our society and communities. Our parents also long for our marriage just like those couples of opposite sex. They long to see that day. Yes, there are cases where families would oppose the marriage. But families oppose opposite-sex marriages too (in case of inter-caste for example). Police protect such couples as police would protect us too. Many government schemes promote inter-caste marriages. We can’t presume a problem that we don’t see. Today we are going through a social change. Neither the court nor the state shouldn’t expect that there is going to be a single kind of outcome. It is not a question about elites. We receive calls from young couples from across the country. I request Union Government to bless us as they bless any other married couple.”
She stated that, after LGBTQ+ marriage is permissible, laws should work uniformly with the opposite sex or the same sex. General Civil laws like gratuity, pension, etc., and those marriage laws where ‘husband and wife’ are read as ‘spouses’ both should make it equal for Queers or hetronormals. Then she addressed the question of having children. It is true that not all couples want children. Marriage is not dictated by procreation. But as a married couple, having a child is part of the human experience. Today, marriage is a gateway for couples to have children as per the legal framework. Adoption laws require couples to be married for a few years. Under the surrogacy act, only a married couple can surrogate and the child is protected by law the same way it is applicable to a child who is born out of natural methods. There are already a few LGBTQ+ couples who have adopted children. In the absence of recognition of the marriage of their parents, the child will have no relationship with one of its parents according to the law while both parents would love the child equally.
The argument was later taken over by Amritananda Chakravarthy who focused on Foreign Marriage Act and Adoption Act. Petitioner she represented was married under Denmark Law and Living as a married couple in Germany. They want to live in India. But because their marriage is not recognized here, if they come back, they are forced to live as strangers. According to Chakravarthy, Foreign Marriage Act excluding a couple just because of their sexual orientation is discrimination. Regarding Adoption laws, Juvenile Justice Act already uses gender-neutral terms ‘person’ or ‘persons’, ‘both spouses’, so there would be no difficulty in including same-sex couples here without even changing a word from the law. And the law states that the adopted parents have to be ‘couples’, nowhere it states ‘married couples’. So even with LGBTQ+ marriage if individuals are in a stable relationship and, match the other requirements of the adoption,
Raghav Awasthi followed representing himself. He too lives in Germany. His concern was regarding Hindu Marriage Act. He wanted to propose changes to Hindu Marriage Act accommodating Queer marriages. CJI responded that it wouldn’t be possible. As the issue is entirely new, 5 minutes (time allotted for Awasthi) wouldn’t be enough even to introduce the submissions, it can’t be made possible. Secondly, since the established canvas of the case is limited to Special Marriage Act, opening up Hindu Marriage Act will be like opening a new case. However, he was allowed to make his arguments in the allotted time. He drew attention to an interesting detail. No religious authority controls Hindu Marriage Act anymore. And no religious ceremony is mandated to register the marriage under the act. The way religious authorities will not be able to challenge marriage for opposite-sex couples, and their intervention will not be necessary to decide about same-sex couples too.
The next advocate, Shivam Singh spoke about innateness. If something is innate to a person, it is impermissible and unconstitutional for the state to utilise it as an opportunity and as a yardstick to impose and discriminate against the person. Sexual orientation is one such category that is innate to a person. Since queer rights are not granted at the expense of anybody else, it has to be granted. He ended by stating “The court and the government already believe in ‘Sarvadharma Samabhav’ it also should believe in ‘Sarvalinga Samabhav’”.
Later 4 interveners presented their arguments in front of the court. Since their name wasn’t announced, I am unaware of the names of two of those advocates.
Intervener 1’s raised the question on Hindu Marriage Act and it was dismissed.
Intervener 2 representing a few queers from the Indian Institute of Science stressed the importance of legalizing queer marriages. They stated that queers are prone to forced conversion therapy (illegal in India) and forced marriages if not shielded by marriages.
Intervener 3, Tulasi Raj provided an academic background of queerness and how LGBTQ+ marriage aids mental health.
The last intervener, Tanushri Bhalla argued that the legal idea for mentioning husband and wife is gender roles. Since gender roles and gender expression are considered a fallacy today, there is absolutely no need for marriage to be gender specific.
After lunch, the argument for the Government was launched by the Solicitor General Tushar Mehta. He stated, “The case Supreme Court is dealing with is a very complex subject having a profound social impact.” He pleaded if it can be redirected to the parliament. He opened his argument by speaking about the acceptance of Queers in society. According to him, the Navtej judgment has given the right to choose one’s own sexual orientation. And there is no dispute about it. Based on one’s sexual orientation, one can’t be discriminated against is also not disputable. The right to personal autonomy is also recognized. But the right to get socio-legal recognition of marriage is not so easy. So far all that petitioners debated is ‘What does marriage consist of?’ and ‘Who can be married?’ But the real question that has to be dealt with is ‘who would take a call as to what constitutes marriage and between whom?’ There would be large unintentional ramifications on other statutes which would need a debate in society, state legislature, etc. The debate has to be assisted by national views, experts, views of effect, and the implication of several laws.
All the laws have been codified to recognize marriage to be between a conventional man and a conventional woman. This is not a value debate. Parliament has no stigma on Queer. Parliament has accepted their right to choice, sexual preference, right of autonomy, and right to privacy. The Transgender Act is from parliament and has a wide scope. So parliament can decide on this issue too.
Right to marry doesn’t include compelling state to come up with a new definition of marriage. But parliament can do that. Supreme Court may not be able to consider a variety of situations that might arise. If the right is declared; how that right can be regulated and a variety of problems would be solved also has to be declared. And that can only be done by the legislature. Marriage right is not absolute even among heterosexual couples. An age restriction of 18 for women and 21 for men is applicable. When to marry is decided by the law. How many times a person may marry is also regulated. In some cases, who to marry is also decided. Divorce, and how to separate is also a regulated provision. Even the right to privacy is also not absolute. Impotence can be a reason for divorce. Even a private issue like impotence will be present in public during a divorce.
Legislation always comes with regulatory provisions. It is impossible for the court to conceive all situations. The heart of the Special Marriage Act is the recognition of marriage between a conventional man and a conventional woman. Rewriting is possible, but the Court has to be aware of the omission of same-sex marriage was intentional by the makers. The Court can’t replace legislative intent. Even if the court decides to allow same-sex marriage, it will have unintended implications. Special Marriage Act is mainly to regulate inter-faith couples. He said, “To say one statute is applicable to two classes of people, namely heterosexual couples and non-heterosexual couples is not right.”
Justice Ravindra Bhat asked for clarification if the solicitor meant to look at heterosexuals and non-heterosexuals through different lens. The solicitor agreed.
Tushar Mehta presented the complexity of the idea of LGBTQ+. He used the term LGBTQIA+ and explained L stands for Lesbians, G for Gays, B for Bisexuals, T for Transgender, Q for Queers, I for Intersex, and A for Asexual. However, the ‘+’ is undefined. He asked how the court could decide if something is undefined. Then he produced a document on 72 shades of queer. He read out the definitions of a few variations of LGBTQ+:
Agender: A person who does not identify themselves with or experience any gender.
Aerogender: Also called evaisgender, this gender identity changes according to one’s surroundings.
Affectugender: This is based on the person’s mood swings or fluctuations.
Alexigender: The person has a fluid gender identity between more than one type of gender although they cannot name the genders they feel fluid in.
Aliusgender: This gender identity stands apart from existing social gender constructs. It means having a strong specific gender identity that is neither male nor female.
Amaregender: Having a gender identity that changes depending on the person one is emotionally attached to.
Ambonec: The person identifies themselves as both man and woman and yet does not belong to either.
Amicagender: A gender-fluid identity where a person changes their gender depending on the friends they have.
Anogender: The gender identity fades in and out in intensity but always comes back to the same gendered feeling.
Bigender: Having two gender identities at the same or different times.
Blurgender: Also called gender fuss, blurgender means having more than one gender identities that blur into each other so that no particular type of gender identity is clear.
These are an unidentified class of people. There are at least 160 laws that depend on gender. One judgment can’t decide what to do with it. It is a humongous task. CJI asked for the source of the document. Tushar mentioned that it is from Medicinenet.com.
And solicitor continued. There is no prohibition on LGBTQ+ people to marry. The question in front of the court is the legal status of which all religions consider it an institution. With examples from Hindu scriptures, Quran and Bible, he argued that it is a social institution that gives legal status. For Hindus, it is a sacrament, for Muslims a sacred contract, etc. Across all faith, it only recognizes marriage between heterosexual males and heterosexual females.
He cited judgment from an American High Court stating that new legislation shouldn’t be done on LGBTQ+. He also cited from Dobbs Vs Jackson Women’s Health Organisation case (The judgment which removed the right to abortion in the US). It mentions ‘fundamental rights must be objectively deeply rooted in nation’s history and tradition’. CJI responded, “The limits of judicial power, the principle of law are well settled. Judges won’t legislate. The power to frame laws and look at social complexities is the duty of the legislature. But if you are relying on Dobbs to support that principle, then we have gone far beyond Dobbs in India. Dobbs represents a view of the American Supreme Court that a woman has no control over her bodily integrity. This theory has been debunked long back in our country. And fortunately, we (the supreme court of India) credit ourselves that we are far ahead in times than many of the western countries in our worldview”
The solicitor placed an argument that in most countries that have legalized same-sex marriage, the law has come from the legislature. And he stated that when they make laws on same-sex marriage, they change other laws as well. Out of 34 countries that have allowed same-sex marriage, in 29 countries it has come from legislation. Among those, 9 countries’ legislation was preceded by court directions. So it should be the parliament that decides on this law. He added, when the Special marriage act was introduced, the intention was clear, inter-faith but heterosexual. Mr. Rohatgi had provided a submission that ‘when Special Marriage Act was introduced, same-sex marriage wasn’t popular.’ But Mr. Tushar objected that is not true. He presented a copy of the debate of legislation on introducing the Special Marriage Act which mentions that homosexuality shouldn’t be added to SMA.
According to Tushar, it was a conscious omission. For which Justice Ravindra Bhat asked, “Was there any country that allowed same-sex marriage during 1952?” The solicitor replied that there wasn’t. But according to him, the lawmakers were aware of homosexuality. And they made a conscious decision to use ‘Husband and Wife’ and ‘Man and Woman’ instead of gender-neutral terms.
Day-5 of the hearing ended with it. Solicitor General will continue to argue on day-6.
The day-5 observed a few interesting events. When the solicitor general kept mentioning page numbers of physical copies instead of PDFs that judges had, judges found it difficult to find them. When it was repeated one of the judges Justice Hima jokingly threatened to confiscate the physical copy if that repeats. When reading past judgments in support of his argument, Tushar read a case judged by CJI Chandrachud. He said “My lord, if you say the same thing here, it would be very easy for us” and a chuckle among few was followed. Another interesting event was observed when Tushar was reading the debate on Special Marriage Act, in the debate from 1952, there was a large opposition from many MPs for the age restriction of 18 and 21. One of them said “18 is too old age to marry”