News Published On: Apr 26, 2023 10:08 AM IST
New Delhi: Observing that many aspects of same-sex marriage may fall within the legislative powers of Parliament, the Supreme Court on Tuesday wondered as to “how far a court can go” when bringing same-sex unions under the ambit of the Special Marriage Act (SMA) is bound to impact personal laws as well.
A constitution bench headed by Chief Justice of India Dhananjaya Y Chandrachud pointed out that “marriage and divorce” are specifically provided under Entry 5 of the Concurrent List of the Constitution, making it clear that these are the matters on which the legislative powers of the Centre and states will operate.
“You cannot dispute that Parliament has the powers to interfere with the canvas covered by these petitions. Entry 5 of the concurrent list. It specifically covers marriage and divorce. The question therefore has to be which are the interstices left in which this court can interfere. The test really is, how far can the court go?” asked the bench, also comprising justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha.
When it started hearing the case on April 18, the constitution bench had clarified that the remit of the proceedings will confine to the validation of same-sex unions only under the SMA.
However, on Tuesday, the bench remarked that though the petitioners may demand a non-religious framework of marriage under SMA, the effect of such marriages would be “intrinsically” linked to personal laws in matters involving succession, inheritance, etc. “There is no getting over the link between SMA and personal laws,” added the bench, expressing its quandary over reconciliation of various issues that may arise if the court were to allow registration of same-sex marriage under SMA.
The court further said that the Indian parliament cannot be compared to the British parliament, which is sovereign and has absolute power to make laws.
“Here, we have Article 246 (which demarcates the powers of the Union and states by classifying their powers into three lists) and Entry 5 classifies marriage and divorce. So, really speaking, we don’t think you can take it that far to say that the government here is thrusting the British parliament model. That may not be a correct way to say it,” the bench told senior counsel Menaka Guruswamy, who was appearing for one of the petitioners on the fourth day of the hearing in the matter.
Guruswamy had earlier submitted that the government cannot come to court and say that this is a matter of parliament, and that this argument is like thrusting the British parliament which is sovereign. She urged the bench to use interpretative tools for a declaration of marriage equality rights for the LGBTQI+ community and attendant benefits such as banking, gratuity and pension. The senior counsel said the petitioners were demanding a mere “workable interpretation” of SMA to recognise their relationships.
To this, the bench pointed out to her that recognition of same-sex marriage under SMA will have an impact on personal laws. “There is no doubt that adoption, succession are the matters dealt with by personal laws… If we read into SMA, there will have to be changes in other personal laws as well. There is no shying away from this… How does the court avoid going into other issues which are intrinsically interconnected?” it asked.
It remarked that the taking the court through the judgments decriminalising homosexuality and establishing right to privacy is an “easy terrain” but the “real difficulty” will be their impact on the personal laws. The court gave an example of succession where Hindu Succession Act will come into play once one of the spouses in a same-sex marriage dies intestate. “There is a completely different line of succession for a man and a woman in the Act. Likewise, for adoption and maintenance. So, the real test is how far and no further,” it said.
Guruswamy, on her part, said that all this would only be consequential. “It will follow,” she added.
The bench retorted: “But how many times will we follow up? Just because we do not get into personal law issues since it is a thorny one or inconvenient, we should not go into it? We are virtually re-enacting many laws and then we are saying we will leave the hard task for later… Many other courts will have to answer it later. Is this our job?”
It added that social welfare legislation such as those dealing with succession and inheritance also are exclusionary as they outline who will be excluded from devolution of properties. “Therefore, by conferring benefits on a particular category of persons, the court will be making a value judgment on who will be excluded…this is the worrying part, not the jurisprudence,” said the bench.
At one point, the bench also asked Guruswamy if the petitioners represent the interest and wishes of the entire community. “Are you to speak for the entire community before us? There may be diversities. There may be unheard voices who may want to preserve their culture, traditions, etc. The moment we secularise it; constitutionalise it, we deny their rights,” the bench asked her. Guruswamy replied that the entire quest is of the ability and the right to make a choice to participate in this new definition of relationship. The bench asked Guruswamy to ponder over the queries raised by it and submit a written submission.
Apart from Guruswamy, senior counsel Geeta Luthra, Anand Grover, Saurabh Kirpal and Jayna Kothari also addressed the court on behalf of different petitioners. The petitioners are expected to wrap up their submissions on Wednesday, following which the Union government will commence its arguments.
Around 50 petitioners have approached the top court asking for legalisation of same-sex marriage, arguing that denying them the right to wed was unconstitutional and violative of their fundamental rights. If they succeed, India will become only the third country in Asia to allow same-sex unions, a mere five years after the court decriminalised homosexuality.
The court began hearing the case on April 18 after turning down the Union government’s objections against the judicial determination of the issue. While the Centre maintained that it is exclusively for the legislature to grant legal recognition to a social institution and that the court must first seek the views of all states, the court went ahead with the matter saying it will adjudge the issue in a “restricted arena” of granting validation to same-sex marriages by reading down or interpreting relevant provisions of the SMA.
During the proceedings last week, the bench disapproved of the Centre’s stand that the demand for legal validation of same-sex marriage is an “urban elitist concept”, saying that an innate characteristic of a person cannot be called “elitist”. It added that the government has failed in adducing any data to buttress its statement even as the Centre informed the bench that it had a day ago written to all states, asking them to submit their views on the legalisation of same sex marriages within 10 days.
On April 20, it observed that by decriminalising homosexuality in 2018, the Supreme Court not only ratified consensual sexual relations between gay couples but also recognised that same-sex couples could stay in a stable, “marriage-like” relationship. The court on that day added that it is now for the apex court to mull over redefining the evolving notion of marriage in the wake of demands for legal recognition of same-sex marriage in the country.
