India’s apex court heard arguments on same-sex marriage legalisation. Here’s what happened

The Indian Supreme Court, on Tuesday (April 18) heard arguments on a batch of 15 pleas which have sought the legalisation of same-sex marriage in the country. This comes a day after the Indian government reiterated its opposition to the motion calling the petitions an “urban elitist concept far removed from social ethos of the country”.

The five-judge bench

The five-judge Constitution Bench, headed by Chief Justice of India (CJI) DY Chandrachud also comprised Justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha. During the hearing, the CJI said there is no such thing as an “absolute” concept of biological man and woman adding that “it’s not just a question of what your genitals are.”

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The CJI has called the marriage issue one of “seminal importance”. The apex court on November 25 last year had sought the Centre’s response to separate pleas moved by two gay couples seeking enforcement of their right to marry and a direction to the authorities concerned to register their marriages under the Special Marriage Act.

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However, the CJI had earlier said that the mandatory 30-day notice of a couple’s intention to marry under the previously mentioned act is “unconstitutional”. He stated, “Even in a heterosexual marriage, that you have to give notice and have people object to whether there should be a marriage or not is unconstitutional.”

Petitioners’ argument

Senior Advocate Mukul Rohatgi who presented the arguments from the petitioners said that those in same-sex relationships should also have equal rights similar to their heterosexual brethren.

Subsequently, referring to the 2018 ruling which struck down section 377 and decriminalised homosexuality, Rohtagi argued that the LGBTQ should also have the right to dignity and to the institution of marriage and family which is available to others.

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He has also sought the provisions under the Special Marriage Act to read marriage between “spouse” instead of “man and woman”. Additionally, Senior Advocate Menaka Guruswamy, also arguing for the petitioners said that it is not only “a question of dignity but a bouquet of rights that LGBTQ people are being denied…like life insurance or medical insurance.”

This comes as the CJI asked the lawyers to steer clear of the personal laws as the court would focus on if the right can be conferred under The Special Marriage Act (SMA), 1954 as they have ‘broadly understood matter’.

The Indian government’s stance

Prior to the hearing, the government, on Monday, said that a court order recognising same-sex marriages would be virtually rewriting an entire branch of law. It has also argued how the court must refrain from passing such “omnibus orders”. Solicitor General Tushar Mehta, appearing for the government, reiterates its stance that the judiciary has no authority on the matter.

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“This would be better if gone into by the parliament. The parliament has eminent parliamentarians. Parliamentary committees are not acting in the way we see parliament function. Committees have all parties as members,” said Mehta.

The CJI’s remarks about the notion of a biological woman or man not being absolute were also in response to Mehta’s statement when he said, “Societal acceptance of any relationship is never dependent on either the legislation or judgement. The legislative intent of the legislature throughout has been a relationship between a biological man and a biological female.”

The next hearing

The apex court will continue to hear petitioners on Wednesday and Thursday while the Indian government will present their arguments next week.

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