On March 13, the Supreme Court referred the petitions seeking legal status for same-sex marriages to a Constitution Bench after the Centre reiterated its opposition to marriage equality, and said that the courts can’t pave the way for it. Sarthak Ray takes a look at what the petitioners want and why the Centre is opposing it.
What the petitions seek
Nine petitions seeking marriage equality pending at the various high courts were transferred by the Supreme Court to itself on January 6. The petitions seek explicit inclusion of same-sex marriage under the Special Marriage Act (SMA) 1954.
The petitioners say that Section 4(c) of the Act recognises marriage only between a ‘male’ and a ‘female’. This discriminates against LGBT couples by excluding them from laws guaranteeing matrimonial benefits such as adoption, surrogacy, employment/retirement benefits to heterosexual couples, due to non-recognition of same-sex marriages. The petitioners seek the declaration of Section 4(c) as unconstitutional. Other petitions clubbed challenge personal laws, including the Hindu Marriage Act (HMA), on similar grounds.
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What the Centre says
It says the union between persons of the opposite sex is “socially, culturally and legally ingrained into the very idea … of marriage” and all personal laws and statutes on marriage recognise only the union between a man and a woman. When there is clear legislative intent to that effect, a judicial intervention to rewrite the text of the law can’t be permitted. Living together of same-sex persons, de-criminalised in Navtej Singh Johar case, bears no comparison with “the Indian family concept of husband, wife, and children born out of the union”.
“Statutory recognition of marriage limited to marriage/union/relation as being heterosexual in nature, is the norm throughout history and are foundational to both the existence and continuance of the State”, the Centre said, arguing the State had a “compelling and legitimate” interest in recognising only heterosexual marriages.
The Centre’s rationale
The Centre contends marriage equality will cause a lot of complications in issues pertaining to adoption, divorce, maintenance, inheritance, etc. The provisions on marriage based on the idea that this means only a union between a man and woman would become “unworkable” for same-sex marriages. It holds that it is best decided by legislature where “social, psychological and other impacts on society, children etc, can be debated.”
It rejects the contention that non-recognition of same-sex marriages is violative of any of the fundamental rights under Part III of the Constitution. It argued that since even straight live-in relationships don’t enjoy the same status as heterosexual marriages, there is no discrimination on the basis of sex in the non-recognition of same-sex marriage, and Article 15 (1) isn’t breached. The right to life and liberty under Article 21 can’t be read to include within it any “implicit approval of same sex marriage”.
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What has the court said so far? And in which jurisdiction is same-sex marriage legal?
The Supreme Court in its order acknowledged that the petitioners have asserted constitutional rights “arising out of the right to life and personal liberty and the right to dignity which is embodied in the provisions of the Constitution including its Preamble and as a natural incident of Articles 14, 19 and 21.” It noted that the submissions involve the inter play between constitutional rights on the one hand and legislative enactments” including SMA, HMA, Foreign Marriage Act, the Transgender Persons Act on the other.
It said that it was “of the considered view that it would be appropriate if the issues raised are resolved by a Bench of five Judges of this Court in view of the provisions of Article 145(3) of the Constitution.” When solicitor general of India Tushar Mehta, appearing for the Union, said that “Parliament will have to see psychology of a child who has not been reared by a father and a mother—these are the issues,” CJI DY Chandrachud, who was heading the three-judge bench, said “Mr SG, the adopted child of a lesbian or a gay couple need not necessarily be a lesbian or gay.”
There exists some form of marriage equality in Taiwan, Costa Rica, the US, South Africa, Canada, Australia, Ireland, Switzerland, Germany, and Argentina.