Will the Supreme Court recognise same-sex marriage? The case so far

On 6 September 2018, the Supreme Court of India delivered a historic judgment decriminalising consensual same-sex relationships and declaring Section 377 as unconstitutional. Now five years later, on 17 October, the country awaits the apex court’s decision on whether it pens a new chapter in the rights for same-sex couples, and allows for equality in marriages. Today, a five-judge Constitution bench presided by Chief Justice of India D Y Chandrachud will announce its verdict on same-sex marriages after it heard a batch of petitions in Supriyo@Supriya Chakraborty versus Union of India & Ors, which claim marriage equality in India back in May and had reserved their verdict following a 10-day hearing in the matter, which was live-streamed for all to see. As the nation and countless of members of the LGBTQIA+ community wait with bated breath for a favourable judgment, we take a look back at what was the case all about, who stands where on the matter and what it would mean for India to recognise same-sex unions. As one member of the community told Bar & Bench: “With the kind of diversity in cultures across India, one had to frame a broader picture and to preview the case under Special Marriage Act is one such step. I not only hope for the verdict to fall on our side, but at the same time, hope it opens up a larger discussion on the rights to privacy, life and equality.” Who are the petitioners? A group of 18 same-sex couples moved the country’s Supreme Court to legalise same-sex marriages in the country. This includes Utkarsh Saxena, a developmental economist and a lawyer, who has challenged the matrimonial laws in the country along with his partner Ananya Kotia, an economist. Speaking to The Scroll, he explained that same-sex couples are also not given basic financial benefits, such as getting life and health insurance benefits or opening a joint bank account. The 18 couples put up their arguments for the country to recognise their rights to marry through various lawyers, including the well-known Menaka Guruswamy, who was also at the forefront of the legal battle in the case pertaining to decriminalisation of homosexuality, holding Section 377 of the Indian Penal Code (IPC) to be unconstitutional, in 2018. Other reputed names such as Mukul Rohtagi, the former attorney general for India, and Abhishek Manu Singhvi also appeared for the petitioners in the case, arguing that India should recognise same-sex unions. **Also read: Which countries approve of same-sex marriages?** What do the petitioners want? The petitioners are challenging the provisions of the Special Marriage Act 1954, Hindu Marriage Act 1955 and the Foreign Marriage Act 1969 to the extent these legislations do not recognise non-heterosexual marriages. The hearing first began on 18 April and senior advocate Dr Abhishekh Manu Singhvi then said in the apex court on behalf of the petitioners: “Homosexual persons can no longer go to jail. The second step has to be affirmative, which is the recognition of their right to marriage.” On the same day, Dr Menaka Guruswamy argued that “marriage wasn’t just a question of dignity. It is also a bouquet of rights.” [caption id=“attachment_13257882” align=“alignnone” width=“640”] A participant holds a banner promoting gay, lesbian, bisexual and transgender rights, in Mumbai, India. The country is believed to be home to the largest LGBTQ+ population across the world, File image/Reuters[/caption] Furthering the case, Mukul Rohatgi argued that the right to marry for non-heterosexual couples is implicit in Articles 14 (Equality), 15 (Non-Discrimination), 16 (Equality of Opportunity in Public Employment), 19 (Freedom of Speech), and 21 (Right to Life), especially after the SC rulings in ‘Navtej Singh Johar vs Union of India’ and ‘KS Puttaswamy and Anr vs Union of India’. Rohatgi’s arguments also centred around the interpretation of the Special Marriage Act (SMA), 1954, so that the same is reworded to read marriage as between “spouse” instead of “man and woman”. During the 10-days of hearing, Singhvi further stated that marriage equality must encompass the full spectrum of sexual orientations and not just the gay-lesbian binary. Singhvi also argued that a civil union, as some countries permit, is not an equal alternative and sends a message that it is legitimate to differentiate between the commitments of heterosexual and non-heterosexual couples, by indicating that the latter’s marriages are not as significant as “real” marriages. Primarily, the petitioners argued that because they can’t legally marry, they don’t have rights to inheritance, maintenance and tax benefits. Moreover, after their partner passes away, they can’t avail of benefits such as pension or compensation. And most significantly, as marriage is a social institution “that is created by and highly regulated by law,” without this social sanction, same-sex couples struggle to make a life together. [caption id=“attachment_13257892” align=“alignnone” width=“640”] The Union government, the National Commission for Protection of Child Rights (NCPCR) and a body of Islamic scholars called the Jamiat-Ulama-i-Hind has opposed the petitions of allowing same-sex marriages in India. File image/AFP[/caption] Who opposes same-sex marriage? The Union government, the national child rights body National Commission for Protection of Child Rights (NCPCR) and a body of Islamic scholars called the Jamiat-Ulama-i-Hind, opposed the petitions in the Supreme Court. In the initial days of the hearing, the Union government through Solicitor General Tushar Mehta raised objections that the Parliament is the proper forum for this matter. Solicitor General Tushar Mehta also urged the top court to reject the petitions, saying that a marriage could take place only between a man and a woman who were heterosexual. He also criticised the same-sex petitioners, saying that they “merely reflect urban elitist views”. The child rights body also opposed same-sex marriages with Additional Solicitor General Aishwaraya Bhati submitting that while the concept of gender may be “fluid”, the concepts of mother and motherhood are not. “Entire architecture of our laws is to protect the interest and the welfare of children who are naturally born to heterosexual persons, and the State is justified in treating heterosexuals and homosexuals differently,” Bhati said, adding that the welfare of children is paramount. **Also read: Why recognising and prioritising children in the same-sex marriage debate is important** Kapil Sibal appearing for the Jamiat-Ulama-i-Hind also argued that argument advanced by the petitioners that the apex court should make a declaration about legal validation for same-sex marriage as Parliament is not likely to do anything about it, is a “very dangerous proposition”. He told the bench that any law of this nature, which is pursuant to a “tectonic shift” in societal value, requires public discourse which includes discourse within and outside Parliament. Why the decision will be historic? It is unknown which way the court will rule, but it is will be historic either way. The apex court had earlier clarified that it was not touching personal laws, such as the Hindu Marriages Act, and was only confining itself to the Special Marriage Act. If the court recognises same-sex marriages in India, it would recognise the rights of a huge part of the population. It is believed that India is home to the world’s largest LGBTQ+ community, estimating numbers to be around 135 million or 10 per cent of India’s 1.4 billion people. **Also read: Same-sex marriage gets a push in India, but some in queer community feel other rights require more urgent attention** Even if the Supreme Court doesn’t rule in favour of the petitioners, it will still bring about change as the Centre during the course of the hearings agreed to set up an inter-ministerial committee, headed by the Cabinet secretary, to examine the “administrative steps” that it can consider for ensuring certain benefits for the same-sex couples even in absence of a legal recognition of marriage. However, some remain sceptical. Kanav Sahgal from the Vidhi Center for Legal Policy, an independent legal think-tank in India, told TIME magazine that even if the Supreme Court legalises same-sex marriage, LGBTQ+ individuals would continue to face discrimination in public services, renting, or adoption. “India doesn’t have a national anti-discrimination law that protects sexual orientation,” he told the publication. Sahgal also warned that some Indian states may refuse to give marriage licences to couples who want to marry. With inputs from agencies