SC verdict on same sex marriages soon: Complete summary of the arguments made during hearing

Here is a recap of the arguments made by both sides.

What the petitioners argued

The petitions argued that marriage brings with it several rights, privileges, and obligations “bestowed and protected by the law”.

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Opening for the petitioners, Senior Advocate Mukul Rohatgi argued that the right to marry for non-heterosexual couples is implicit in Articles 14 (Equality), 15 (Non-Discrimination), 16 (Equality of Opportunity in Public Employment), 19 (Freedom of Speech), and 21 (Right to Life), especially after the SC rulings in ‘Navtej Singh Johar vs. Union of India’ (2018) decriminalising homosexuality by striking off Section 377 IPC, and ‘KS Puttaswamy and Anr. vs. Union of India’ (2017), which upheld the fundamental right to privacy, respectively.

However, themes like the inclusion of LGBTQIA+ couples in the Special Marriage Act (SMA), 1954, the Foreign Marriage Act, 1969, the minimum marriageable age of such couples, and the impact of such marriages on children were also discussed throughout the hearing.

Besides this, the Delhi Commission for Protection of Child Rights (DCPCR) advocated for recognition of such marriages and filed an intervention application to assist the court on the impact of those marriages on children.

Special Marriage Act

Rohatgi’s arguments centred around the interpretation of the SMA, 1954 so that the same is reworded to read marriage as between spouses instead of “man and woman”. Besides this, Senior Advocate Menaka Guruswamy added that the right to marry is accompanied by several benefits and rights, such as pensions, provident funds, etc.

Subsequently, Rohatgi pointed to Section 4, SMA, which refers to a marriage in gender-neutral terms, between ‘any two persons’. However, simply amending the SMA isn’t enough, and a constitutional declaration of marriage is needed, similar to that of the heterogeneous group, he said. Indicating that SC’s recognition of same-sex marriage will eventually lead to a situation where society accepts it, Rohatgi said, “This court needs to push society to acknowledge same-sex marriage”.

Additionally, Rohatgi suggested that without an interpretation of the SMA in favour of LGBTQIA+, the court could register marriages under the Registration Act, 1908.

Senior Advocate Abhishek Manu Singhvi also said that marriage equality must encompass the full spectrum of sexual orientations and not just the gay-lesbian binary. He advocated removing the 30-day notice period under Section 5 of the SMA, which requires parties to give a 30-day public notice of their intention to marry. The public notice is then displayed at the marriage officer’s office, inviting potential objections to the marriage. However, Singhvi said that this invites unwarranted interference from vigilante groups and family members, etc., which violates individual privacy and autonomy.

A concern relating to the protection of queer persons from violence within their natal homes was also flagged by advocate Vindra Grover, who also suggested reading ‘atypical marriages’, recognised by the Mental Health Act 2017, within the SMA.

Minimum Marriageable Age

On the question of the minimum age of marriage for non-heterosexual couples, Singhvi submitted that for lesbian couples, the minimum age could be prescribed as 18 years, while for gay couples, it could be 21 years. For transgender couples, the same ages would apply based on the gender they identify with.

Foreign Marriage Act

Appearing for an Indo-American same-sex couple whose marriage was registered in Texas, USA, Senior Advocate Geetha Luthra argued for recognition of their marriage in India under the FMA, 1969, contending that only a marriage against international law could be denied recognition under the Act. Since that wasn’t the case here and the couple’s marriage was legally recognised in the US, Luthra sought similar recognition of their marriage in India.

Recognition of fundamental rights

Informing the court of the presence of invalid queer marriages that already exist in our society, Senior Advocate Jayna Kothari said that not granting LGBTQIA+ persons the right to marry and have a family would amount to a violation of their right against discrimination on grounds of sex, caste, religion, etc. She too pushed for a gender-neutral interpretation of the SMA.

Reiterating the queer community’s fundamental right to marry, Senior Advocate Saurabh Kirpal contended that the State could not deny marriage equality on grounds of “impracticality” as the discriminatory laws were created by it.
Stating that a lack of recognition of LGBTQIA+ persons’ marriage rights will deny them equal protection of the law, Senior Advocate Raju Ramachandran said that marriage also offers them societal protection.

Positive Declaration

Similarly, Senior Advocate Raju Ramachandran referred to a situation where the court only makes a declaration and leaves the rest to the legislature, as in the cases of triple talaq and the Transgender Act, among others. Reasoning that there were instances where the majority, as reflected in the institution of the legislature, had no serious problem, he urged the court to walk the full mile and protect the petitioners, who were the “unpopular minority” here.

Advocate Arundhati Katju also stated that throughout history, the court was responsible for ushering in changes, and then sought a positive declaration from the court to solemnise queer marriages, along with a negative declaration binding the State to not discriminate against them.

Transgender Persons Protection Act

Asserting that queer persons’ right to marry has already been recognised by the Transgender Persons Protection Act, 2019, flowing from the 2014 NALSA judgement, advocate Karuna Nundy argued that all queer identities are part of this term. The 2019 Act prohibits discrimination against transgender persons, including denial or unfair treatment in educational establishments, services, employment, and healthcare.

In 2014, the Supreme Court in NALSA vs Union of India gave legal recognition to persons outside the purview of the male-female gender binary, falling under the category of “third gender”. Essentially, the court upheld the right of transgenders’ to decide their gender and directed the Centre and state governments to legally recognise the same.

Civil unions are not enough

On the final day of arguments, Senior Advocate AM Singhvi told the Bench that a civil union, as permitted in some countries, is not a solution to what same-sex couples are asking for.

Singhvi said that civil unions are not an equal alternative and do not address constitutional anomalies presented by excluding non-heterosexual couples from the institution of marriage.

Further, he said that this exclusion sends a message that it is legitimate to differentiate between the commitments of heterosexual and non-heterosexual couples, by indicating that the latter’s marriages are not as significant as “real” marriages.

What the respondents argued

The respondents, including the Central government, the national child rights body NCPCR, and a body of Islamic scholars called the Jamiat-Ulama-i-Hind, opposed the petitions.

On maintainability & SMA

On the first day, Solicitor General of India Tushar Mehta raised preliminary objections to the court’s jurisdiction to hear this case, but the court responded that it would deal with the aspect of maintainability at a later stage.

Later, Mehta argued that 160 laws would be impacted in the process of bringing marriage equality. Consequently, he said that Parliament is the only forum to make such laws. Adding that the lawmakers had a conscious intent to include only heterosexual marriages under the SMA, Mehta said that the Act’s character and intent cannot be altered.

Under the SMA, the court cannot give rights to non-heterosexual couples that heterosexual couples don’t have, Mehta contended. He went on to illustrate that under the Act, a wife could seek divorce on the ground that her husband has, since the solemnisation of the marriage, been guilty of rape, sodomy, or bestiality. However, he asked the court what would happen in cases of homosexual couples.

“This is a right specifically given to the wife. In the case of gay marriage, who would get this right? The petitioner’s argument is that the court must allow both parties to have this right. But there is a problem there… can the court allow a right to one party in a gay marriage and not to party in a heterosexual marriage,” Mehta said.

Legitimate state interest in regulating marriages

Mehta argued the State has a ‘legitimate’ interest in regulating marriages while citing aspects such as the age of consent, prohibition of bigamy, prescription of prohibited degrees of marriage (which means one can’t marry their lineal ascendants, such as parents, grandparents), judicial separation, and divorce. Mehta also envisaged a future where arguments on freedom of sexual orientation and autonomy could be raised to challenge the prohibition of incest.

The Centre also suggested forming a committee headed by the Cabinet Secretary to address the “human concerns” of same-sex couples without legally recognising their relationship as “marriage”. However, when the Bench asked the petitioners if, at this stage, they would still like to push for a declaration for a right to marry under the SMA, the petitioners responded that although the measure was welcome, it wouldn’t suffice as a “major solution”.

Impact on children

Appearing for the child rights body NCPCR, among others, ASG Aishwarya Bhati submitted that while the concept of gender may be “fluid”, the concepts of mother and motherhood are not. “Entire architecture of our laws is to protect the interest and the welfare of children who are naturally born to heterosexual persons, and the State is justified in treating heterosexuals and homosexuals differently,” Bhati said, adding that the welfare of children is paramount.

However, Senior Advocate Menaka Guruswamy for the petitioners brought in the aspect of adoption rights of same-sex couples, saying that over 50 countries allow it, which is more than the countries that allow same-sex marriages.

How different states responded

Meanwhile, the Centre informed the top court that it had received responses from seven states on the plea seeking legal recognition for same-sex marriages. While Rajasthan, Assam, and Andhra Pradesh opposed the plea, the remaining four — Sikkim, Maharashtra, Uttar Pradesh, and Manipur — sought more time.

What the other respondents argued

The Jamiat-Ulama-i-Hind through Senior Advocate Kapil Sibal argued that it was a “very dangerous proposition” to seek a declaration validating same-sex marriages from the court as Parliament isn’t likely to do much. Highlighting that the SMA is only for heterosexual marriages and cannot be misinterpreted by the court, Sibal said, “What they have asked for is not a fundamental right but something short of it but something meaningful.”

As Sibal concluded his submissions, Senior Advocate Arvind Datar, also for the respondents, argued that if same-sex marriage is declared a fundamental right, future legislation or Parliament will not be able to go back. He also said that while the rulings in Navtej or Shafin Jahan were monocentric, the present dispute is a “polycentric”, one that will affect several legal provisions, possibly wreaking collateral damage in its wake.

While Navtej decriminalised homosexuality by striking off Section 377, the Shafin Jahan ruling recognised the right to choose one’s partner as a facet of the fundamental right to liberty and dignity.