'Not the question of what your genitals are, it's far more complex': SC on same-sex marriages

The Supreme Court on Tuesday made it clear that it will not go into the personal laws governing marriages while deciding the pleas seeking legal validation for same-sex marriages and asked the lawyers to advance arguments on the Special Marriage Act. A five-judge constitution bench headed by Chief Justice D Y Chandrachud termed the issue involving the pleas 'complex' and said the very notion of a man and a woman, as referred to in the Special Marriage Act, is not 'an absolute based on genitals'.

"It is not the question of what your genitals are. It is far more complex, that's the point. So, even when the Special Marriage Act says man and woman, the very notion of a man and a woman is not an absolute based on genitals," said the bench, which also comprised justices Justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha.

On being pointed out the difficulties and ramifications for the Hindu Marriage Act and personal laws of various religious groups if the apex court were to hold same-sex marriages valid, the bench said, "Then we can keep the personal laws out of the equation and all of you (lawyers) can address us on the Special Marriage Act (a religion neutral marriage law)."

The Special Marriage Act, 1954 is a law that provides a legal framework for the marriage of people belonging to different religions or castes. It governs a civil marriage where the state sanctions the marriage rather than the religion. 

Solicitor General Tushar Mehta, appearing for the Centre, referred to the laws on transgenders and said there are several rights such as the right to choose partners, privacy right, right to choose sexual orientation, and any discrimination is criminally prosecutable. "However, the conferment of socio-legal status of marriage cannot be done through judicial decisions. It cannot even be done by the legislature. The acceptance has to come from within the society," the top government law officer said.

He said the problem will arise when a person, who is a Hindu, wants to avail the right to marry within the same sex while remaining a Hindu. "Hindus and Muslims and other communities will be affected and that is why the states should be heard," the law officer said.

"We are not going into the personal laws and now you want us to get into it. Why? How can you ask us to decide it? We cannot be compelled to hear everything," the bench said.

Then this will amount to 'short circuiting' the issue and the Centre's stand is not to hear it all, Mehta said, to which the CJI responded: "We are taking a middle course. We don't have to decide everything to decide something."

On being pointed out that even the religion-neutral Special Marriage Act has the term 'man and a woman', the bench said it is not the question of 'genitals' and the very notion of the special law having 'man and woman' is not restricted to the genitals.

Mehta, however, insisted it is restricted to the genitals and added there were several laws which the court will be making redundant inadvertently if it chose to give legal backing to same-sex marriages.

The law officer gave the example of the Code of Criminal Procedure (CrPC) and said a woman cannot be called for examination after a certain time and there could be a situation where a man says that though he has the genitals of a male he is not a man. "There is always change in the society and it begins from somewhere," he said.

The bench said though 10 petitioners wanted it to be dealt with on a broader aspect "we are restricting it and we are not going into personal laws etc".

The law officer contended the bench was saying it will not go into the personal laws but the earlier judgments opened this window and so again this would open another window later.

"But we cannot bind our future generations long after we are gone and turned to dust," the bench observed.

The law officer said the court should decide first whether it can go into this question at all or it would be essentially for parliament to deal with it.

Senior advocate Rakesh Dwivedi supported the Centre's objection to same-sex marriages and said all states were necessary parties in the matter and needed to be heard.

Senior advocate Kapil Sibal, appearing for Jamiat-Ulama-i-Hind, said the court should either hear the issue in entirety or not hear it at all as a piecemeal approach will cause more harm than good to the group seeking legal validation for same-sex marriages. "I am a firm believer of the autonomy of an individual. We need to celebrate the union of two people. Now, if marriage is allowed and it breaks, then the question will be who will take care of the child. Who will be the father. Who will be the mother," he said.

Giving some examples of other nations, Sibal said they reformed all other laws and that he was all for same-sex marriage but not in this fashion. "If this is not done as a whole, then let it not be done at all," he said.

Senior advocate Mukul Rohatgi, appearing for one of the petitioners, said if rights have to be identical "then I must get the recognition of my union the same way as the recognition of union of two other heterosexuals."

"And since it is based on an implementation of my fundamental rights, I can come to the court and the court need not wait for the legislature. There may not be a mandamus to the legislature. Legislature can or cannot do," he said, adding "If this court has said something, the State has to respect it and once State respects it, stigma will go."

Rohagti underlined that law cannot remain static and changes with time.

The bench said, "We have to exercise our interpretative power in an incremental manner and laws are evolving. So we have to be mindful that the court will do it in the way of interpretation and going incrementally we can cover a canvas for the present... Confine yourself (lawyers for the petitioners) to the incremental canvas and then allow Parliament to respond to the evolution of the society. We cannot deny the fact that parliament is indeed relevant here."

"For time being can we not step into personal laws at all and restrict to Special Marriage Act by giving it a gender-neutral interpretation and evolving a civil union concept. From the Navtej Johar (decriminalisation of consensual gay sex) judgement till now there has been an acceptance of same sex relationships in universities ...And in this evolving consensus, the court is playing a dialogical role and we know about our limitations," the bench said.

One of the senior lawyers Menaka Guruswamy referred to the difficulties being faced by the LGBTQIA+ (lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual, and ally) community in opening bank accounts and buying life insurance and alleged they were being denied these rights. "I cannot buy SCBA insurance for my family even though I am a SCBA member.. The rights are protected when you protect your relationships," she said.

Earlier during the day, the Centre insisted its preliminary objection on whether the court can at all go into this question or it would be essentially for parliament to go into it be heard first.

The apex court had on March 13 referred the pleas to a five-judge constitution bench for adjudication, saying it is a 'very seminal issue'.

The hearing and the outcome will have significant ramifications for the country where common people and political parties hold divergent views on the subject.

The apex court had on November 25 last year sought the Centre's response to separate pleas moved by two gay couples seeking enforcement of their right to marry and a direction to the authorities concerned to register their marriages under the Special Marriage Act.

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