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, a Constitution bench observed on Thursday, adding 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 India.
As the five-judge bench headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud continued hearing the submissions on whether same-sex marriage can be brought within the fold of the Special Marriage Act (SMA), the court also criticised the requirement under SMA to issue a 30-day public notice inviting objections to an intended marriage, calling the provision “patriarchal” and an apparent invasion of privacy and right to marry a person of one’s own choice. The other members of the bench are justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha.
The court’s remarks on Thursday came even as the Union government, while opposing the pleas on recognition of same-sex marriage, claimed in its March affidavit that the 2018 judgment “adequately clarified” that decriminalisation of homosexuality would not mean legitimising same-sex marriages.
The third day of the arguments on the clutch of petitions seeking legal validation of same-sex marriage revolved chiefly around the registration of such unions under SMA as a necessary sequel to gay rights, and a challenge to an SMA provision which requires issuance of a public notice by marriage officers 30 days prior to a marriage, to invite or entertain objections.
The bench was categorical that the 2018 judgment in Navtej Johar case was not meant to only accord legal protection to “chance encounters or physical relationships”.
“Looking at India, constitutionally and socially as well, we have already reached the intermediate stage. The intermediate stage postulates that by decriminalising homosexuality, you contemplate that people who belong to the same sex would be in stable marriage-like relations. The very act of decriminalising homosexuality would mean that people can stay in stable, marriage-like relationships…Not just a chance encounter or physical relationship but something more stable. That’s an incident of our interpretation,” said the bench.
Responding to submissions made by senior counsel Abhishek Manu Singhvi on behalf of one of the petitioners, it added: “So, we see these relationships not just as physical relations but something more of a stable, emotional relationship. Once we have crossed that bridge, we have to now see if we can also recognise marriages, and not just marriage-like relationships.”
The bench added that the judicial exercise will involve redefining the evolving notion of marriage to determine if the existence of two persons belonging to binary genders a necessary requirement for marriage or the law has progressed sufficiently to contemplate that existence of binary genders is not an indispensable part of a valid marriage.
“Is the relationship between a man and a woman so fundamental to our law and SMA that for us to comprehend that it would also include a relationship between a same-sex couple would be completely redoing the tapestry of the legislation?” wondered the bench, agreeing to examine Singhvi’s contention that the institution of marriage in itself is so very important that denying it to same sex couple would be contrary to fundamental rights and constitutional guarantees.
“We are expanding the meaning of the statute in the context of constitutional guarantees. And in that you are saying be liberated from the bare text of the Constitution. We have never seen ourselves as bound by the original text of the Constitution. So then, should we be bound by the original text of a statute which is subordinate than a constitutional provisions in a sense?” it asked.
Singhvi and senior counsel Raju Ramachandran, who appeared for another petitioner, also attacked the SMA provision which necessitates officers to display a public notice of an intended marriage under the Act in a conspicuous place or the notice board in their office for 30 days. The senior counsel argued that the State cannot delay and interdict decisional autonomy of a couple to get married at a time of its choice.
The bench agreed with them. “It’s based on patriarchy. Women didn’t have agency when these laws were framed…This is like laying them open for invasion by the society including the superintendent of police, the district magistrate etc,” it observed.
The court added that if the effect of the notice is to defer one’s right to get married at a time of their choice, it cannot be regarded as procedural because the impact is on persons’ substantive right to get married at the time they decide.
The court stated that the requirement of a public notice is not the least restrictive method and may not pass the muster of the proportionality test if the objective is to ensure such marriages are not declared void in future.
“There is a very real likelihood that this will disproportionately affect situations in which one of the spouses belongs to a marginalised community or minorities. This has a disproportionate impact on the most vulnerable sections of society,” stressed the bench, as Singhvi and Ramachandran argued that the SMA provisions on public notice should be quashed by the court.
At one point, the bench also snubbed the Centre’s concerns over impact on psychology of a child being raised by a same-sex couple. “And what happens when there is a heterosexual couple and the child sees domestic violence? Will that child grow up in a normal atmosphere? Of a father becoming an alcoholic, coming home and thrashing the mother every night, and asking for money for alcohol? There are no absolutes as I said, even at the risk of getting trolled,” commented the CJI.
The court will resume the arguments in the matter on April 24 when the petitioners have to conclude their submissions. The Union government, states, and others, will commence their arguments on April 25.
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 on Wednesday, the Constitution 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.
