New Delhi: The Supreme Court’s five-judge Constitution bench resumed its hearing on Tuesday in Suprio @ Supriya Chakraborty vs Union of India, with the bench asking the petitioners’ counsel to throw light on the uncertain road ahead assuming that their pleas to recognise the marital rights of LGBTQI+ people are recognised.
For the bench, it appeared imperative to anticipate and address the complex concerns that may arise under various beneficial Acts (such as Payment of Gratuity, Pensions, Provident Fund, Insurance, Inheritance, etc.) which may have also to be read down, to accommodate the non-heterogenous couple, along with the heterogenous couple. The petitioners, however, told the bench not to be unduly concerned about the after-effects of declaration of marital rights of non-heterogenous couples, as they expressed their hope they would be taken care of in due course.
Thus, senior advocate, Geeta Luthra, while referring to The Foreign Marriage Act (FMA) which deals with validity of foreign marriages in India, claimed that she represents the only couple who are validly married according to local laws in a foreign country, with one of the spouses being an Indian citizen, and seeking their rights before the court. Though they had validly married according to the local laws in Texas, US, and the marriage was consistent with international laws, and the comity of nations, the registration of their marriage was refused by the Indian Marriage Officer on the ground that the couple belonged to the same gender, and they were not allowed to get an Indian visa.
Luthra disclosed that 34 countries have recognised same-sex marriage and 12 of the G-20 countries including the European Union have permitted marriage between non-heterosexual couples, but India is lagging behind, although FMA envisages giving legal recognition to marriages solemnised abroad. She alleged that this amounts to discrimination on the ground of sex alone, and of gender orientation.
Luthra submitted that marriage is an evolving and not static concept, and it is expansive and inclusive. In particular, she contended that the majority cannot decide the rights of minorities. Comparing the status of sexual minorities in India with other countries which have recognised marriage unions of non-heterogenous couples, Luthra said that they have the bundle of rights, whereas she has none. “We are too late. We may be jump-starting (with a declaration from the bench); but we are lagging behind others,” she submitted. Navtej Singh Johar (the judgment striking down Section 377) started the footprints, we have to give effect to it, we cannot be left half-way, she concluded.
Senior counsel Anand Grover challenged the Union government’s affidavit which denied non-heterosexual relationships in ancient India. He referred to references in Indian scriptures, and the claims made by the court in the NALSA case. It is part of our tradition, unlike the Europe, he said. In the 13th and 14th centuries, we were very much ahead of European thinking, he added.
If I am a cis-male and marry a cis-female and during the subsistence of marriage, if I assume a female gender, the law does not say marriage is void or voidable, he suggested.
Grover claimed that states like Kerala are recognising these marriages, to which Justice Ravindra Bhat answered that if an existing marriage has resulted in children and a family, and if this is not preserved, it would lead to adverse consequences for members of that family.
Grover was pessimistic about expecting Parliament to legislate on the issue. On LGBTQI+ issues, there has been no positive response in Parliament for the last five years, he said.
Grover challenged the Union government’s claim that it is urban and elitist, by pointing out that a large number of couples who are running away from homes have their origin from small towns. “They come to the capital city, and need protection. Two women have come from a rural area. They don’t have a place to stay, don’t have money, they are poor people. They are not elitists. It is evident. The government’s notion is incorrect,” he submitted.
Senior advocate Jayna Kothari told the bench that the petitioners are seeking marriage irrespective of gender identity and sexual orientation. In practice, what happened after the Supreme Court’s judgment in the NALSA case was that transgender people were unable to exercise their rights, due to the insistence on medical reassignment to get the documents changed, and this resulted in no access to the whole bundle of rights, she claimed.
Kothari pleaded for the right to family to be recognised as a right under Article 21. As the right to marry gives rise to family, it has to be recognised under Article 21, she submitted. “Marriage is one way we can have a family. The couple may decide not to have children. What does a family do? That is the core of our being. Its essential ingredients are love, care, psychological and economical support. Family is not just a heterosexual phenomenon,” she submitted.
Senior advocate Menaka Guruswamy submitted that Parliament is constrained by the Constitution. She claimed that marriage is a bouquet of rights, such as gratuity, Provident Fund, pension etc, which flow from spousal relationships created by marriage. “We are excluded from all that,” she added.
Marriage is a matter of conscience under Article 25 of the Constitution, Guruswamy suggested.
Chief Justice of India D.Y. Chandrachud suggested that the canvas of the petitions does fall within Parliament. “It’s undisputed. Parliament has legislative power over these petitions as per Entry 5 of the Concurrent List. It covers marriage, divorce, infants, minors, adoptions, will, joint family, partition etc. all matters which were part of personal law before the Constitution. To accept the Union’s contention cannot mean supplanting the British system. Our Parliament has specific jurisdiction on legislative terms to legislate in this area. If this is the power specifically conferred on Parliament, how does the court interfere,” he asked her.
Guruswamy answered that we cannot have a situation where the state is remiss.
Justice Bhat drew her attention to Article 17 of the Constitution abolishing untouchability and said that rights have to be translated into law.
Referring to the right to privacy declared in the Justice Puttaswamy case, the CJI said the court took note of the constitution of the Justice Sri Krishna Commission and the ensuing law on protection of data privacy. “We could not issue a mandamus to Parliament,” he suggested.
“These rights have to be fleshed out by the legislature. Visakha laid down a framework, and Parliament had to enact a law to ensure safety of women in the workplace. How far can the court go?” he asked.
Guruswamy said they don’t ask anything special today, but for workable implementation of the Special Marriage Act. “Counsel after counsel presented workability tables. We only ask constitutionally tenable options,” she added.
The CJI asked how does the court avoid other issues such as dignity, family life, human dignity, benefit from the institution of marriage etc. It is conceptually an easier terrain for the court to cross. Once you cross the terrain, the court has to address other challenges, he suggested.
Justice Bhat asked how many times the court can follow up and said it is a thorny issue. He told her: “You are saying we will leave it later. How many more litigations we will have. It is our job.”
The CJI referred to statutes involving social welfare benefits on certain categories of persons, husbands of deceased employees, income tax, pension, provident fund, etc. and asked who would get the benefits, if the court accepts the petitioners’ submissions. For the purpose of these statutes, these benefits will devolve on the spouses of same-sex couples. “We are excluding…by conferring benefits on a particular category of persons, we are saying who will be excluded by those statutes,” the CJI expressed his concerns.
The CJI said that the court has no answer to those who say ‘I assert my right to stay within religion’. He suggested that there is no denying the link between SMA and personal laws.
The CJI explained that judicial review is by nature not under-inclusive. Parliament can do it. “How can we craft a solution? There is a lot of thinking to be done,” he told her.
Senior advocate Saurabh Kirpal told the bench that there is nothing unusual about continuing litigation much longer after the declaration of a right by the court. “We come back on a case to case basis. There is nothing unusual about it. Sexual equality was declared in 1950. Are we not coming back to courts now? Could it be a reason for not declaring sexual equality in 1950?” he asked.
As an interpretative exercise, he suggested that there is no point saying you have a right, but no remedy.
Justice Bhat suggested that getting the right is not surmountable whereas making it workable is challenging. There are many elephants in the room; It is nitty gritty versus the recognition of the right, he suggested.
Kirpal submitted that having found a right, the government would say because of the legislative draftsmanship, your right is erased. The government will say: “You have a right to marry, because we have drafted our laws in a way that your right to exercise that right is impossible, your fundamental right can be trumped.”
Because it is unworkable, he, therefore, asked whether we can say, don’t give a fundamental right. Tomorrow, they will frame all sorts of laws to make fundamental rights unworkable. Workability argument, therefore, he contended, is not persuasive.
“If Parliament does not intervene…nothing happens. Are we going to live in a lawless society? The SCI having found a constitutional right, can it leave it to the mercy of Parliament? It will not act. It is a complete anathema to rule of law and also to the constitutional scheme,” Kirpal concluded, saying this argument cannot be countenanced.