As the Supreme Court’s five-judge constitution bench continued its hearing of petitions to legalise same-sex marriages, it appears to have more or less made up its mind that granting full marriage rights to non-heterosexual couples is not going to be easy, and that progress towards that goal has to be incremental.
The first indication was available during the last hearing, when Chief Justice of India (CJI) D.Y. Chandrachud proposed to the solicitor general Tushar Mehta if the government could think of some administrative solutions to some grievances of non-heterosexual couples which do not involve the legal requirement of recognition of marriage. Mehta informed the court on Wednesday, May 3, that the government was indeed open to the idea, and would set up a committee headed by the cabinet secretary to consider any suggestions which may be submitted from the petitioners. Mehta requested the petitioners to submit simple suggestions, and avoid making any references to the court’s jurisprudence.
The petitioners too saw merit in what the bench proposed, and if something is easy to get, achieve or deal with – that is a low-hanging fruit – it can be done without any prejudice to their pleadings and rights in this case.
The government, however, added a caveat: they would not have a ready solution to every problem that non-heterosexual couples may have, but ideas and suggestions that they present must be “legally permissible”.
The petitioners, however, cautioned the bench that there are substantial issues involved in the ongoing hearing, which may be outside the scope of “administrative tweaking” being referred to. In reality, if the petitioners aim at changes in regulations and laws, the government is thinking of changes in circulars, they warned. To this, Justice Ravindra Bhat said some of the changes urged are not substantial and sometimes beginnings can be small. Senior counsel for the petitioners, Abhishek Manu Singhvi, said whatever is given would be good, though the struggle for substantial changes should continue.
The CJI requested the petitioners to make a gist of such suggestions to make the right to cohabit meaningful for non-heterosexual couples. “Cohabitation is the accepted social reality. Based on that, certain incidents of cohabitation such as bank accounts, insurance policies, and other practical issues that can be resolved by the government can be a step forward,” he suggested.
Mehta agreed to this, citing the example of an old man, being taken care of by a caregiver, for whom recognition of marriage is not the issue, though they cohabitate.
Concerned that the discussion was on a tangent, senior counsel, Menaka Guruswamy told the bench that it missed the point that the case involved assertion of rights, and that the benefits of pension, PF etc accrue only in a marriage and not to a caregiver.
When the CJI asked the government to consider implementing the suggestions, if feasible, Mehta said he saw no difficulty in amending the rules to say, for instance, that in the case of nomination for provident fund, it can be a family member or anyone else which a retiring person chooses.
Singhvi agreed to give a chart with ideas and suggestions for the purpose of administrative tweaking, though it is only the Supreme Court which, he said, can decide the actual meaning of marriage, as that is the juristic question.
‘Incremental progress’
The CJI added that in the conceptual domain, legislative changes are required, which lie outside the domain of the judiciary. According to him, there are three levels of reform. The first involves pure administrative changes, which can easily be done by the government. Secondly, there is subordinate regulation, which also can be done by the government. The third area, according to him, is the scope of laws like the Special Marriage Act (SMA), which the court will ultimately decide. He said that the cohabitation of same-sex couples is a substantial advancement as a matter of concept.
When Saurabh Kirpal and Guruswamy expressed their concern that they found a consensus within the non-heterosexual community that they wish to have marriage, and the identity associated with marriage and that it would not be correct to say that they would be happy with something else, the CJI said he understood their feelings.
But the CJI expressed his difficulty that the court could not merely go by what young people feel on the ground. If that is the criterion to interpret the law, then we will face data on what other people – opposed to legal recognition of marriage for non-heterosexual couples – feel, he warned. “Let’s not get into it at all. We don’t go by popular morality. There are too many interlinkages, with other statutes, including personal laws. Judicial review involves taking incremental steps. Social institutions evolve over a period of time. The court can ensure this by acting as facilitator. There is wider social acceptance of the right to cohabit together,” he explained.
Justice Bhat added that in similar struggles in the US, there are ups and downs. You are circumventing all that, he told the petitioners. But if you are getting something out of this, it is big positive, he said. He asked the petitioners not to see this as the end of the battle. The movement should continue, he suggested.
Interpreting the petitioners’ contentions, CJI Chandrachud told Mehta that it is not their contention that the state is duty-bound to recognise all relationships in society. What they are saying is that by not recognising them, the government is acting in a discriminatory manner. As marriage is a vital social institution, same-sex couples say that they are entitled to the same right to dignity, which is offered to heterosexual couples under that institution, the CJI said. Denial of this recognition deprives them of all societal benefits, he told Mehta.
Respondents want more discussion
Senior counsel Rakesh Dwivedi, for the respondents, asked the court to go slow on the matter. He cited the example of the court rushing to ensure gender equality in the Sabarimala matter, which, he claimed, led to a counter-revolution on the field. As a result, the court had to back down, and refer it to a nine-judge bench, he said.
Dwivedi suggested that fundamental rights don’t operate in a vacuum. Questioning the contention that marriage is the source of dignity, he asked whether widows lose dignity. The CJI corrected him saying marriage is not considered as the only source of dignity by the petitioners. It is a question of choice, he told Dwivedi.
Dwivedi then suggested that the petitioners are trying to use the court’s prestige to gain social acceptance. “I am not inimical to their relationship; but let there be more debate, more acceptance. Let parliament debate whether something can be done,” he told the bench.
The hearing will resume on May 9.