Will form committee on concerns of same-sex couples: Centre to Supreme Court

The Bench asked the petitioners to sit with Attorney General R Venkataramani and Solicitor General Tushar Mehta over the weekend and discuss matters.

Senior Advocate A M Singhvi, appearing for the petitioners, said he “fully understands what” the court “is saying” and “will reflect on that, and build that into our argument”.

On April 27, when the matter was last heard, the Bench, also comprising Justices S K Kaul, S Ravindra Bhat, Hima Kohli and P S Narasimha, had asked the Centre what it was willing to do to provide conditions of security, social welfare etc to same-sex couples which would also save them from ostracisation, even if it was unwilling to grant legal recognition to marriage between such couples.

Responding to this Wednesday, Solicitor General Mehta said, “The issue was some genuine human concerns and discussion was if something can be done administratively. Government is positive. This would need coordination between more than one ministry. Therefore, a committee headed by no less than the Cabinet Secretary will be constituted”.

Mehta said the petitioners can give their suggestions which will be considered, as far as legally possible, by the government.

Singhvi agreed that it is one step ahead but added, “what is being suggested at best is administrative tweaking by a committee, legal tweaking is another… I don’t think it will bring any major solution… Whatever little is given by administrative tweaking is certainly welcome. I am only saying that this should be seen as a constructive effort towards a convergence, not a substitute for the larger solution”.

At this, Mehta said, “Whichever mode, method or manner in which that problem, if permissible, can be addressed… We are right now not aware of what we are dealing with. Suppose, as pointed out, it might need a change of law, and a change of law might need some wider issues of recognition of a particular relationship, then we will have to examine whether that can be done”.

Justice Bhat told Singhvi that “sometimes beginnings are small” and can be very substantial in the long run.

“If this results in a gain, maybe not as substantial as you visualised, that’s one of the building blocks for your future… That too is something you may have to consider given that you are now not really fighting a battle only for these petitions but there is a larger group of people there who may not be covered by this dialectic of the Special Marriage Act. So, then is it advisable or prudent if you are going to get this to continue with that larger push… you will have to take that call,” he said.

The CJI said “from the drift of the submissions made by the SG on the last occasion, it appears that the SG also accepts that of course people do have a right to cohabit and the right to cohabit itself is something which is now an accepted social reality at least. Based on that, there may be some incidents of cohabitation. For instance, in relation to your right to reside together, bank accounts, insurance policies, these are practical issues which can be resolved by the government. From your perspective also, this is a step forward. You don’t have to go for an all-or-nothing approach”.

Senior Advocate Menaka Guruswamy pointed out that for things like pension, provident fund etc, the rights accrue only in a marriage.

Responding to this, Mehta said, “Suppose the government says nomination in the case of PF would be a family member or anyone else’s which the retiring person chooses to. Then you don’t need to go into anything else. The problem is solved. Sometimes solutions are simpler than the problems.”

Intervening, Justice Kaul said, “This is without prejudice to everybody’s rights… Suppose you were to succeed to a limited extent and the court was inclined to give you a status of a marriage or inclined to give you some other status, not marriage, there will be many many changes required in administrative proceedings as also legislative aspects. Therefore, if there is a consensus at least, whatever be the status recognised, after all they are not denying that this is an incidence of society which is happening. They are reluctant to give the status of marriage but they are not – I believe, from what the SG said – reluctant to sort out the problems arising from a gay companionship without labelling it as marriage to the extent possible.”

Singvi contended that only the court, and no circular or committee, can decide “the real, symbolic, actual meaning of marriage… That’s the juristic question”.

CJI Chandrachud said, “Equally, when we go into the conceptual domain, we cannot be oblivious of the fact that to the extent to which the conceptual domain requires legislative changes, that part clearly lies outside the remit of the courts. Then the question which the court has to face is to what extent it will go in formulating the conceptual domain. Because ultimately whatever doctrine the court formulates has to be relevant on the ground. Therefore, there may be three levels – there may be areas which are governed by pure administrative changes which can easily be done by them; second, changes which they accept as a matter of principle which may require changes in the form of some subordinate regulation which again is a matter for the government. They don’t have to go to Parliament for that, which is again much easier to achieve than a Parliamentary change in legislation. The third is the wider…”.

Agreeing that the court will ultimately have to decide the prayer of the petitioners, the CJI said, “Of course, we will have to decide it. We are going to decide this entire issue as a matter of concept, but to the extent to which the government takes the first step forward, there would be a substantial benefit, a substantial advancement in the recognition of… cohabitory relationships of same-sex couples today… Which will be a substantial advancement over what we have today.”

Advocate Saurabh Kirpal and Guruswamy said the vast majority of the young people they have met want to get married.

The CJI, however, said, “At the Constitutional level, there is a serious problem with the argument. If we go by what young people feel, as a Constitutional court, we would be subject to volumes and tombs of data on what other people feel. Therefore, the salutary safeguard of Constitutional adjudication is that the court has to go by what the Constitution mandates. Therefore, we don’t go by popular morality or segmental morality. We decide what the Constitution says. Because the moment you say this is what young people feel, I am sure there are people on the other side who are willing to throw tombs of material at us on what the country feels. Let’s not get into it at all.”