The Indian Supreme Court (Photo by TK Kurikawa via Bigstock)
While India’s national capital, New Delhi, was facing a heat wave on April 26, oral arguments in a case that could extend marriage rights to same-sex couples resumed in the country’s Supreme Court.
Solicitor General Tushar Mehta argued on behalf of the Indian government.
“This court is dealing with a very complex subject having a profound social impact,” said Mehta, who is the country’s second-highest legal official. “All the questions in this case must be left to the Parliament.”
Mehta, while arguing before a 5-judge panel headed by Chief Justice Dhananjaya Yeshwant Chandrachud, said the court in Navtej Singh Johar v. Union of India recognized the right to one’s sexual orientation. Mehta further said the real question is who will determine what constitutes marriage and between who.
Navtej Singh Johar v. Union of India was the historic Supreme Court ruling that decriminalized homosexuality in the country in 2018.
Mehta, while arguing for the government, said there would be several unintended consequences for several laws is the Supreme Court rules in favor of marriage equality. He argued Parliament and civil society groups would need to debate the issue.
Mehta said that there is no stigma and legislative policy is clear in the Transgenders Act, where it is widely defined to include all genders. Mehta appealed to the Supreme Court to leave the matter of marriage equality to Parliament and argued the court may not be in a position to address the multiple situations that will arise because of adjudication.
“If they (LGBTQ) have a right how will it be regulated?,” asked Mehta. There are several shades of the spectrum. It is not just gays, lesbians, etc.”
Mehta also spoke about different genders.
He argued that if LGBTQ people are given recognition, that is unidentified, it may not correspond with Indian laws and it would be impossible to reconcile through a judgment. Mehta also referenced the Dobbs v. Jackson Women’s Health Organization ruling in the U.S. that struck down the Roe v. Wade decision, but Chandrachud said the American Supreme Court ruling that determined a woman has no autonomy over her own body was the wrong judgment.
“We credit ourselves that we have gone far ahead than these, especially Dobbs v. Jackson Women’s Health Organization,” said Chandrachud. “For socially complex issues, leave it to the legislature, that point is well taken.”
Mehta argued India’s Special Marriage Act is for regulating interfaith and inter-caste marriages, but the law was always intended for heterosexual couples and not for same sex couples.
Justice Shripathi Ravindra Bhat immediately intervened and asked Mehta whether there was a marriage equality law anywhere in the world. He further said that perhaps there was no foundation for such a marriage to be recognized by law in 1956.
Mehta replied there was neither permissive nor prohibitive operation of law in India until 1956. Mehta on the hearing’s sixth day gave a bizarre example to support his argument.
He asked the court to imagine a situation of incest. Chandrachud argued the example is far-fetched and sexual orientation, and autonomy cannot be exercised in all aspects of marriage.
“It cannot be argued that sexual orientation is so strong that incest be allowed,” said Chandrachud.
Mehta also argued that extending marriage rights to same-sex couples would impact other laws that specifically address heterosexual marriages. He said that issues would arise across the country, and further highlighted it would be difficult to determine who the wife would be in a lesbian marriage and how she would receive rights — spousal support if she has no financial means to support herself and alimony in the case of divorce.
Justice Pamidighantam Sri Narasimha agreed and said it would be an impossible thing to do.
Chandrachud, while hearing Mehta’s argument, noted three points that Mehta was trying to highlight: Adjudication would require substantial rewriting of Indian law, judicial interference in public policy and interference in personal law. The court cannot avoid the interplay between the Special Marriage Act and personal law.
Personal laws in India regulate marriage, divorce and child adoption for different religions. Hindus under personal laws have the Hindus Marriage Act of 1955, Muslims have the Muslim Personal Law (Shariat) Application Act of 1937, and Christians have the Indian Christian Marriage Act of 1872.
The Supreme Court also noted that extending marriage rights to same-sex couples falls under Parliament’s domain, but the court’s goal is to ensure ways to grant legal rights, social and other benefits to same sex couples without the label of marriage.
Mehta during Wednesday’s hearing shocked the country when he said the government is ready to address marriage rights for same-sex couples by forming a committee that a Cabinet secretary will head.
“(The) issue was some genuine human concerns, and discussion was if something can be done administratively,” said Mehta.
Chandrachud quickly suggested that Attorney General R. Venkataraman and Mehta should meet with the plaintiffs’ lawyers to frame the issue.
“The conceptual domain requires legislative changes, and it is completely beyond our domain,” said Chandrachud. “So we have to see how we frame the conceptual doctrine. Somethings can be done administratively, something can be changed by subordinate legislation, and the third is recognition for the same sex marriage. So we are saying we will decide this issue as a concept, but the govt taking one step forward will be to recognize the cohabitation of same sex couples, which will be a big step.”
Venkataramani began his arguments before the Supreme Court once Mehta concluded.
Venkataramani said that Special Marriage Act is only a law about the institution of marriage and does not create the institution of marriage itself, and that is why it is not discriminatory legislation. Lawyer Rakesh Dwivedi argued on behalf of one of the litigants who opposes marriage equality, and questioned whether there is a fundamental right to marriage in India.
“Is there fundamental right to recognition of marriage?,” asked Dwivedi, while arguing against marriage equality. “Is there a fundamental right to equality in the marriage of heterosexuals? can this be made permissible by the variety of amendments?”
Bhat asked Dwivedi whether the word spouse diminishes the meaning of husband and wife.
“We say I take you as a husband and take you as a wife,” said Dwivedi. “How can we say I take you as my spouse.”
Dwivedi also argued that the case requires social accommodation, and Parliament is in the position to decide how to take the step, when to take it and what lays ahead. He argued that India’s social fabric would break apart if the Supreme Court rules in favor of marriage equality.
Homosexuality is ‘offensive’ to Indian values
A group of former judges, former Indian Police Services officers, and former bureaucrats wrote an open letter to Indian President Droupadi Murmu. They asked her to intervene in order to “save” Indian cultural traditions, religious tenets and social values.
“If we revise the law to make same-sex union rational, acceptable, or moral, it will open the doors to same-sex culture. Our society and culture do not accept same-sex behavioral institution because it is offensive to our values, besides being irrational and unnatural,” the letter reads. “It is widely appreciated that same-sex relationship cannot create long-term or stable institutions; and if they are allowed to adopt children, they cannot maintain stable and long-lasting relationships with their families, parents, relatives and partners. The health and future of such children will be severely compromised.”
The Supreme Court Bar Association in an April 28 resolution said it was highly inappropriate of the Bar Council of India to oppose the marriage equality hearing, because the Supreme Court has the right to decide whether it should adjudicate the issue or leave it to Parliament.
The Washington Blade on April 24 reported that the Bar Council of India, a statutory body that regulates legal practices and education in the country, held a joint meeting with all of the country’s state Bar Councils and passed a resolution concerning marriage equality. The Bar Council of India has requested the Supreme Court leave the issue of marriage equality for legislative consideration.
The Supreme Court will resume hearing on May 10 for final arguments from Mehta and additional considerations from the plaintiffs.
Ankush Kumar is a reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India and Singapore. He recently reported for the Daily Beast. He can be reached at mohitk@opiniondaily.news. He is on Twitter at @mohitkopinion.
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