CJI Chandrachud-led five-judge bench to hear same sex marriage case on April 18

The three-judge bench has listed the matter for hearing on April 18.

“Having due regard to the broader context of the petitions… and the interrelationship between the statutory regime and constitutional rights, we are of the considered view that it will be appropriate if the issues raised are resolved by a Constitution bench of five judges of this court having due regard to the provisions of Article 145(3) of the Constitution,” the reference order said. Under Article 145(3), a minimum of five judges should hear cases that involve “a substantial question of law as to the interpretation” of the Constitution.

The Central government, which has opposed the petitions, has urged the SC to leave the issue to be decided by Parliament. It told the top court that a “legislative understanding of marriage in the Indian statutory and personal law regime” refers only to marriage between biological men and women and that any interference “would cause complete havoc”.

Any “recognised deviation…can occur only before the competent legislature”, the government submitted before the court, noting that same-sex marriage cannot be recognised by law “despite the decriminalisation of Section 377 (homosexuality)” of the IPC in Navtej Singh Johar v. Union of India. Representing the Centre, Solicitor General Tushar Mehta told the court that “nobody is interfering” with “the right to love, the right to express, and freedom of choice” as laid out in the Navtej Singh Johar verdict.

He, however, pointed out that the top court was also “very, very careful” in saying this ruling “should not be meant as conferring any right including the right to marriage.”

“When the question of granting recognition, legal sanction to a relationship is concerned, that is essentially a function of the legislature, and for more than one reason,” Mehta had argued. “The Parliament will have to debate and take a call whether in view of the societal ethos and several other factors which go into the law-making, whether we would like this institution to be recognised,” he said.

Mehta said the Centre’s affidavit mentioned existing provisions in the various laws dealing with marriage that specifically relate to only biological men and women and that the laws would become otiose if same-sex marriage is legalised.

Senior Advocate Abhishek Manu Singhvi, who appeared for some of the petitioners, sought to counter and said it is about “the right to love that the SC explained in its judgment decriminalising same sex relations is the right that makes us human”. He said the consequential issues which follow from the decriminalisation of Section 377 is that “the right to marry cannot be withheld from a class of persons solely on the basis of their sex, sexual orientation or gender identity”. He argued that “in the event the right to marry is extended to such classes, then it should be extended in equal terms”.

Also appearing for some petitioners, Senior Advocate N K Kaul said the Special Marriage Act speaks about marriage between any two persons. He said that in the Navtej Singh Johar verdict, the SC “categorically said that the right to life includes dignity and choice of family, marriage, procreation and sexual orientation and it inheres in every individual including the LGBTQ community”.

“In the Puttaswamy case, the SC said same sex couples enjoy the right to privacy in making vital personal choices specifically including the right to marry. In Deepika Singh, SC said unconventional manifestations of love and family by same sex couples equally deserve protection under law and benefits under various legislations,” Kaul said, adding “if we holistically look at all these judgments, the rights that your lordships have recognised of same sex couples and the community, are far beyond a narrow pedantic interpretation sought to be given to the Special Marriages Act by saying that in one paragraph, male and female is used,” he said.

Senior Advocate Menaka Guruswamy, who also appeared for the petitioners, said, “The legislative intent of the Hindu Marriage Act requires that same sex marriage be recognised, because Section 5 of the Act speaks of marriage between two Hindus.” She said, “When Ambedkar presented this, the objections he received on inter-caste marriage, widow remarriage, etc were similar to what the Solicitor General is saying now.”

After the SC referred the case to the Constitution bench, Muslim body Jamiat-Ulema-i-Hind moved an application opposing the prayer for legal recognition of same sex marriages and seeking to become a party in the case. “Islam’s prohibition of homosexuality has been categorical from the dawn of the religion. From the primary religious text, the Holy Quran, to the embargoes placed through the teachings of the Prophet Muhammad, the primary legislator, and to the interpretations available in the work on the Islamic teachings on gender relations and sexuality; the position of Islam with respect to the prohibition on homosexuality is undisputed and established,” it said.