NEW DELHI — The Indian Supreme Court on April 18 started hearing a case on whether to extend marriage rights to same-sex couples in the country.
Chief Justice Dhananjay Yeshwant Chandrachud is heading a panel of five judges to decide if the time is now to extend marriage rights to same-sex couples in the country where being LGBTQ+ is not a crime, but a same sex couple cannot marry.
The marriage equality case on the first day of the hearing started with a heated exchange between Solicitor General Tushar Mehta, the country’s second highest legal official, and Chandrachud. The solicitor general argued which forum should be the only constitutional forum that could adjudicate the marriage equality law. Chandrachud wanted to hear the merits of the case first. Mehta insisted on hearing the issue first.
“I am in charge. I will decide. We will hear the petitioners first,” said Chandrachud.” “I will not allow anyone to dictate how proceedings will happen in this court.”
Judges felt a little shocked when Mehta said that if that is the case, let him then take time to see if the government should participate in the hearing. Justice Sanjay Kishan Kaul, one of the five judges who is currently hearing the validity of marriage equality in India, asked Mehta if he meant that the government would not participate in the hearing.
“None of us know what a farmer in south India thinks or a businessman thinks in North India,” said Mehta.
Chandrachud argued that the court would consider any request other than adjournment. After the heated argument in the court, senior lawyer Mukul Rohtagi opened the case for petitioners.
“We are persons of the same sex, and we have the same rights as like the heterosexual groups of the society this has been held so, and we need not reinvent the wheel and only stumbling block was Section 377, and our actions were subject to criminality, and now it is gone,” said Rohtagi, who represents the plaintiffs. “If our rights are identical and then we should enjoy full array of rights as under Articles 14, 15 and 21.”
Article 14 of the Indian constitution deals with equality before the law.
The article says that the state shall not deny to any person equality before the law or the equal protection of the laws within Indian territory based on grounds of religion, race, caste, sex or place of birth. Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth. Article 21 says no person shall be deprived of his life or personal liberty except according to a procedure established by law.
Rohtagi argued that the court should not wait for legislative action when fundamental rights are involved.
“Our lives are getting passed,” said Rohtagi. “We are getting old, and we need to be respected as in a marriage. Call them queer, call them gay. People look at them differently, and that is a violation of Article 21. A violation of right to life with dignity and also violation of Article 15 when there can be no discrimination based on caste, sex.”
While arguing, Rohtagi brought up the Respect for Marriage Act in the U.S. to support his argument about the validity of marriage equality. When the court was hearing the validity of the marriage equality case, Chandrachud made a note to restrict the discussion on the gender-neutral interpretation and evolve a civil union concept.
Menaka Guruswamy, a senior lawyer, while arguing for the plaintiffs, said she could not designate her life partner for life insurance and that people like her would keep coming to the court to redress individual grievances.
The Washington Blade last November reported that the Life Insurance Corporation of India, a public sector insurance company under India’s Finance Ministry, had said that there is no legal bar for anyone to make their same sex partner a beneficiary in insurance policies in the name of that person.
Mehta during the middle of the hearing said that the question is not granting a socio-legal sanction. It has been clearly saying no one shall discriminate against a Transgender person, including unfair treatment and denial of employment, and here trans includes LGBTQ+ and intersex and not what is understood in the conventional sense. He also said that Hindus and Muslims will be affected, and that is why states should be heard.
Chandrachud said that the notion of biological man and biological woman is absolute. The chief justice also said that it is not a question of genitals because the Special Marriage Act’s definition of man and woman is not restricted to genitals.
The Special Marriage Act is an Indian marriage law enacted in 1954 that provides a legal framework for the marriage of people belonging to different religions or castes.
Mehta argued other laws will be redundant if the marriage equality law takes effect. He also requested the Supreme Court consult all states in India for their response as marriage laws are listed in the concurrent list of the constitution that states union governments and state governments can make laws on the subjects enlisted under the concurrent list. Marriage falls under the concurrent list of the Indian constitution.
Kapil Sibal, a senior lawyer for Jamiat Ulema-I-Hind, a leading Islamic scholar organization in India, told the Supreme Court he believes in the autonomy of an individual and that everyone needs to celebrate the union of two people. But Sibal also argued that if same-sex marriage is allowed who will take care of the child? Who will be the father? Who will be the mother? Sibal said that in international examples countries reform all other laws to accommodate these things.
“I am all for same sex marriage but not in this fashion,” said Sibal. “If this is not done as a whole then let it not be done at all.”
Rohatgi said before the bench that the LGBTQ+ and intersex community has a fundamental right to get married and have it registered like heterogenous brethren of the society.
“I was amazed to hear that we are not equals and we need to be equal to stigmatized lot, and that is why court should step in, and that is why even after 377 judgment we are here,” said Rohatgi. “That is why state is telling us here that we are not equals.”
While highlighting equality and justice for everyone, Chandrachud, said that justice is to each of us, liberty to each of us, equality to each of us, and fraternity for all of us.
On April 19, the second day of the hearing, the central government filed a fresh application and urged the judges to take into account the state governments’ views since “marriage” is on the concurrent list. The central government in its application said that the Department of Legal Affairs has also written to all chief secretaries of state to submit their views on same-sex marriage in case notice is not issued to them. The central government also said that states should submit their views in 10 days so that center can present the case before the Supreme Court.
Rohatgi said that the LGBTQ+ and intersex community suffers under the majority. He said it is not the law, but a mindset that is bothering LGBTQ+ and intersex people in their daily life. Rohatgi also said that society accepts what the law is and highlighted to the judges that the LGBTQ and intersex community has no representation in the Parliament and that’s why the community has approached the court. Rohatgi also argued that constitutional morality would become a habit for the people when the same is upheld by the Supreme Court.
“State cannot discriminate against an individual on the basis of a characteristic over which the individual does not have control,” said Chandrachud. “When you see it is innate characteristics, then it counter urban elitist concept. Urban perhaps because more people are coming out of the closet. Government does not have any data also to show that same sex marriage is an urban elitist concept.”
On the third day of hearing, senior lawyer K.V. Vishwanathan appeared for the plaintiffs and argued that if one can be a son, daughter, sister, father-in-law, uncle, aunt and partner, then what holds the court to give marital status to the same-sex couples.
“It is only the sexual orientation which is beyond my control and it is not in conformity with heterosexual norms and thus will not accord you protection like the normal married couples,” said Vishwanathan. “Procreation is a valid defense to negate the right to marriage.”
Vishwanathan also argued that marriage is the coming together of two souls and to be told that it is to be looked at from procreation purpose is fallacious.
“What happens when there is a heterosexual couple when there is domestic violence. What kind of impact on children? So much for being heterosexual,” noted Chandrachud. “What about father coming back home drunk thrashing up the mother and asking money for alcohol? there is nothing absolute at the cost of being trolled. Answers to what we say in court is in trolls and not in court.”
The Supreme Court of the land also noted that the government does not have the data to prove that same-sex marriage is an urban elitist concept.
“People come out of closet,” noted the Supreme Court.
The central government, in its application, had highlighted that the concept of marriage equality is an ‘urban elitist’ notion.
The hearing on LGBTQ+ and intersex marriage rights has attracted reactions from across the nation.
Ranvir Shorey, a Bollywood actor, reacted to Supreme Court’s hearing and said that there is no fixed way to be a man or a woman.
“Better to think of it in terms of polarity, or scale. Those who fuss over binaries ought to remember there is an infinity between the two too,” said Shorey in a tweet. “Jurisprudence is derived from human understanding of nature’s principles. Laws exist so a society can function as a collective, while trying to preserve the rights of the individual. The more our laws move away from nature, the more at conflict we will be with ourselves.”
The Vishwa Hindu Parishad has opposed the marriage equality rights petition and said the “haste” with which the Supreme Court is hearing the petitions for legal recognition of same-sex marriage is not appropriate. The organization also said that the court should have asked for the opinion of religious leaders and experts from diverse fields.
The Bar Council of India, a statutory body that regulates legal practices and education in the country, on Sunday held a joint meeting with all the state Bar Councils in the country and passed a resolution concerning marriage equality. The Bar Council of India has requested the Supreme Court to leave the issue of marriage equality for legislative consideration.
“India is one of the most socio-religiously diverse countries in the world consisting of a mosaic of beliefs. Hence, any matter which is likely to tinker with the fundamental social structure, a matter which has a far-reaching impact on our socio-cultural and religious beliefs should necessarily come through the legislative process only, the meeting unanimously opined. Any decision by the Apex Court in such a sensitive matter may prove very harmful for the future generation of our country.” the release stated.
The Bar Council of India also said that more than 99.9 percent of people in the country are opposed to the idea of marriage equality. The Supreme Court will start hearing the government’s arguments on Tuesday.
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.
