The Solicitor General Tushar Mehta continued his argument throughout Day – 6. He raised a question about drawing a line with reference to forbidden relationships. He mentioned that the degrees of prohibited relationships are well codified in the Special Marriage Act. And it is different for men and women. How can this be applied to queer relationships will be a complicated question. While explaining the Solicitor General Opined that ‘It is true that one has the right to choose one’s sexual orientation.’ And the CJI corrected it by stating ‘Sexual orientation is not chosen, but given.’
Mehta continued by stating that ‘freedom of sexual orientation is hailed to be a fundamental right. It is a privacy issue is the logical argument made by the petitioners. But if we think this through, incest is also a prohibited relationship and someone can claim that it is their right. He stated “Incest is not uncommon in the world. And world over incest is prohibited.” If the logical argument presented by the petitioners has to be accepted, the prohibition on incest can also be challenged. CJI intervened by saying that ‘it is very farfetched’ to which the solicitor replied “We used to treat even same-sex relationships as farfetched.”
CJI gave a remark stating “Sexual orientation or autonomy of individuals can never be exercised. All aspects of marriage including entry into marriage, the prohibited relationships, and the ground on which marriage can be dissolved, are all subject to regulation by law. So it may be farfetched for anyone to argue before us that the orientation is so absolute that I can therefore commit an act of incest. No court will ever agree with it.”
Solicitor responded by drawing attention to the issue of polygamy and how it is possible to argue polygamy as an orientation. CJI responded by saying that polygamy is governed by personal law, so Special Marriage Act wouldn’t apply. Justice Ravindra Bhat intervened “Universal rules as long as they were not codified, they were accepted. It was the norm. If you are proceeding to say that there is a state interest, it can be understood.
Solicitor General agreed and continued. “State can regulate certain relationships if the state feels that is legitimate state interest to do so. Marriage was not a regulated social relationship. But State in its legislative policy wisdom decided that we will regulate, and we can regulate only when we recognise. Therefore under Hindu Marriage Act, we recognised and regulated marriage.” He also added that when the Navtej case (decriminalisation of section 377 or homosexuality) was under progress, Union Government said that ‘we leave it to the wisdom of the court so far as the decriminalisation of section 377. But this has nothing to do with the future of marriage, inheritance, etc. He also added that the petitioners do not represent everyone who is in this particular class of queer. So even if petitioners say that a certain provision is acceptable to them, that doesn’t voice the entirety of the queer class.
He continued his argument by drawing attention to the age restriction of marriage. According to it, a person of the male sex can marry at the age of 21 years and the female sex can marry at the age of 18. And the divorce laws are different for husband and wife. He asked, “Who will be husband and who will be wife in a same-sex relationship?” and he continued, “If we make it gender neutral, even the husband can claim alimony.” Justice Hima Kohli replied to it “Even in heterosexual marriage, the husband can claim alimony. We have already encountered a few cases.”
CJI gave his remark “Just to summarise, according to you, 3 major problems in representing Special Marriage Act provisions are, “it will involve substantial rewriting of the legislation. It may involve the court ignoring some provisions (like legal differences between man and woman) which has been introduced on the grounds of public policy like the special provisions for women to divorce. Thirdly, it would involve reinterpretation of personal law. To which Solicitor General responded, yes. “If I may add one more, the court can’t read any statute so as to applicable to one class differently and another differently”
The Solicitor General stated, “Right to love, right to co-habit, right to project sexual orientation are fundamental rights. But there is no fundamental right to seek legal recognition as marriage or in any other name”. CJI replied that once you recognise there is a right to cohabitation itself is a fundamental right, then to say that you can’t give any legal recognition at all is troubling. Once we accept the fact that same-sex couples have the right to cohabit, then there is a corresponding duty on the state to act at least recognise all the social incidents (effects) of cohabitation and must find recognition in the law.
CJI gave another remark on the recognition of the marriage. If the law didn’t say anything about marriage, the effects of marriage would be spun across several provisions. If a person has hard-earned money which has as a provident fund or gratuity, and there is no provision that enables heirs to get it. Or there is no provision for nomination. There is an element of a welfare state/ democratic state, there are aspirations of people that there is recognition somewhere. Cohabiting couples can’t have joint bank accounts, they can’t nominate for inheritance. Government should take actions to recognize cohabiting couples.
CJI stated “It was the impact of British Victorian Morality that we had to forsake much of our cultural ethos. You go to the finest temples which reflect the architecture (of queer relationships). It is not considered lurid. And that shows the depth of our culture. Look at the great profound nature of our culture down the ages. What happened unfortunately was from 1857 (for example introduction of the Indian Penal Code) we imposed as it were a code of British Victorian Morality on a completely different culture. Our culture was extraordinarily inclusive. Probably that is why it sustained for thousands of years.
Justice Ravindra Bhat added, ‘Unlike in other countries, there has in been no prohibition on same-sex marriage. In that sense, except 377 (which criminalized homosexuality) we didn’t have any law. So it means that society by and large was accepting the way things were. Now we have decriminalised it and there is some sense of identity. As a welfare state, how do you deal with it? Is a question.
CJI asked Solicitor General if he can speak with the representatives of the Union Government and to check if they can come up with a regulation related to this considering the gravity of the situation. And the Solicitor General agreed to it.
Day 6 witnessed a few interesting events. There was a bit of debate if the registration of marriage is compulsory. And a senior advocate confessed that his marriage is not registered too. And the CJI joked, according to the law there is Rs. 25 fine for not registering marriage, where is your 25 Rs.? On another occasion, a senior advocate stated that ‘since a celebration of marriage is required under Hindu Marriage Act, there are many 2-minute marriages in Tamil Nadu.’
Just like Day-5, even on Day-6 solicitor made mistakes in quoting page numbers of the PDF. CJI jokingly warned ‘I need to issue a notice, If you do that again, I will ask your junior to argue instead of you.’
Solicitor General continues to argue on Day-7 and other advocates opposing same-sex marriage will also be presenting their arguments.