Concept of man and woman not absolute: Supreme Court on same-sex marriage

It is not the question of what your genitals are. It is far more complex, that's the point. So, even when the Special Marriage Act says man and woman, the very notion of a man and a woman is not an absolute based on genitals, said the bench, which also comprised justices Justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha.

New Delhi:Beginning hearing a batch of petitions seeking recognition of same-sex marriage, the Supreme Court on Tuesday made it clear that it will not go into the personal laws governing marriages while deciding on the pleas and asked the lawyers to advance arguments on the Special Marriage Act.

A five-judge constitution bench headed by Chief Justice D Y Chandrachud termed the issue involving the pleas complex and said the very notion of a man and a woman, as referred to in the Special Marriage Act, is not an absolute based on genitals".

"It is not a question of what your genitals are. It is far more complex, that's the point. So, even when the Special Marriage Act says man and woman, the very notion of a man and a woman is not an absolute based on genitals," said the bench, which also comprised justices Justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha.

The petitioners supporting same-sex marraige in the LGBTQ community argued that the centre has presented its clear stand before the top court saying that its an "urban elitist view" and leaving the matter to the Parliament would not bring in any change as Parliament represents the majority will or popular will and the LGBTQ community people are in minority and discriminated.

Senior Advocate Mukul Rohatgi appearing for one of the petitioners argued that the Constitution doesn't make any difference between heterosexual and homosexual people and it is wrong on part of the government to say that they are not equal. He argued that the argument that heterosexual majority is the only way of life, is the majoritarian view and discrimination based on sexual orientation is deeply offensive.

"I should not be discriminated against just because I am 10,000 and others are 10 crores," argued Rohatgi. He said that "marriage gives respectability in our society and in India settling in life involves getting married". "No 377, so live the way you want in your house but not outside else society will look at you in a different way. It's not to tell a constitutional court that if a man comes for his rights he should wait for the Parliament. I have right to come to the court because my rights are affected. I should not be told that I should wait for the Parliament and something will be done when I am old or dead," argued Rohatgi.

Interpreting Rohatgi, the CJI said that people can say that they have the right to privacy but then society can not say okay we will leave you alone but we will not recognise you. He said that humans are social animals, they can't be left alone and there is a positive obligation to the state. Rohatgi agreed and said that the same stigma continues, there is no criminalization but the majority perception is the same and still exists.

Senior Adv Maneka Guruswamy appearing for one of the petitioners and being herself a part of the LGBTQ community argued on the practical daily life issues that are faced by the people from the community. She said that she can't buy health insurance, open joint bank accounts etc because all that needs marriage as a pre-requisite.

"All rights flow from blood relations or marriage. That's the problem, if a relationship is short of marriage, we will have to keep coming to courts," argued Guruswamy.

Solicitor General Tushar Mehta, appearing for the Centre, referred to the laws on transgenders and said there are several rights such as the right to choose partners, privacy right, right to choose sexual orientation, and any discrimination is criminally prosecutable.

On being pointed out the difficulties and ramifications for the Hindu Marriage Act and personal laws of various religious groups if the apex court were to hold same-sex marriages valid, the bench said, "Then we can keep the personal laws out of the equation and all of you (lawyers) can address us on the Special Marriage Act (a religion-neutral marriage law)".

The Special Marriage Act, of 1954 is a law that provides a legal framework for the marriage of people belonging to different religions or castes. It governs a civil marriage where the state sanctions the marriage rather than the religion. Solicitor General said the conferment of the socio-legal status of marriage cannot be done through judicial decisions.

"It cannot even be done by the legislature. The acceptance has to come from within the society, the top government law officer said. He said the problem will arise when a person, who is a Hindu, wants to avail the right to marry within the same sex while remaining a Hindu. Hindus and Muslims and other communities will be affected and that is why the states should be heard, the law officer said.

"We are not going into the personal laws and now you want us to get into it. Why? How can you ask us to decide it? We cannot be compelled to hear everything," the bench said. "Then this will amount to short circuiting the issue and the Centre's stand is not to hear it all," Mehta said, to which the CJI responded: "We are taking a middle course. We don't have to decide everything to decide something."

On being pointed out that even the religion-neutral Special Marriage Act has the term man and a woman, the bench said it is not the question of genitals and the very notion of the special law having man and woman is not restricted to the genitals. Mehta, however, insisted it is restricted to the genitals and added there were several laws which the court will be making redundant inadvertently if it chose to give legal backing to same-sex marriages.

The bench said though 10 petitioners wanted it to be dealt with on a broader aspect "we are restricting it and we are not going into personal laws etc." The law officer contended the bench was saying it will not go into the personal laws but the earlier judgments opened this window and so again this would open another window later.

"But we cannot bind our future generations long after we are gone and turned to dust," the bench observed. The law officer said the court should decide first whether it can go into this question at all or whether it would be essential for parliament to deal with it. Senior advocate Rakesh Dwivedi supported the Centre's objection to same-sex marriages and said all states were necessary parties in the matter and needed to be heard.

Senior advocate Kapil Sibal, appearing for Jamiat-Ulama-i-Hind, said the court should either hear the issue in its entirety or not hear it at all as a piecemeal approach will cause more harm than good to the group seeking legal validation for same-sex marriages. "I am a firm believer of the autonomy of an individual...we need to celebrate the union of two people.... now, if marriage is allowed and it breaks, then the question will be who will take care of the child. Who will be the father... who will be the mother...," he said.

Giving some examples of other nations, Sibal said they reformed all other laws and that he was all for same-sex marriage but not in this fashion. "If this is not done as a whole, then let it not be done at all," he said.

The apex court had on March 13 referred the pleas to a five-judge constitution bench for adjudication, saying it is a "very seminal issue. The hearing and the outcome will have significant ramifications for the country where common people and political parties hold divergent views on the subject. The apex court had on November 25 last year 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.

The hearing in the matter will continue on Wednesday.