New Delhi: Solicitor general Tushar Mehta on Wednesday, May 10, told the Supreme Court that any declaration from the bench on the right of non-heterosexual couples to marry would be binding on every individual and may lead to problems of non-compliance. He was opposing even a mere declaration of the right to marry from the bench without granting formal marriage rights to non-heterosexual couples.
Citing case laws before the US Supreme Court, Mehta told the constitution bench that is hearing the case that a priest refusing to solemnise the marriage of a non-heterosexual couple may be guilty of contempt of court, in the event of the court making a declaration recognising marriage equality.
To this, Justice S. Ravindra Bhat, who is part of the bench, responded saying the priest would have the right of conscience. By declaration, Justice Bhat said, the court can recognise a state of affairs. “Legislature has the wherewithal to regulate the fallout. Fallout can be manifold, in various facets of life. Legislature can still do something,” Justice Bhat observed.
Mehta told the court that seven states have responded to the ongoing litigation. Of these, Rajasthan clearly said it is opposed to the petitioners’ prayers. Other states, he said, have submitted that this issue needs a very intense and expansive debate, and therefore, they would not be able to respond immediately.
Rights under Special Marriage Act
It was now the turn of the petitioners to respond to the contentions of the respondents. Senior counsel Abhishek Manu Singhvi began his submissions with a reference to the notice and objection regime under the Special Marriage Act (SMA). Chief Justice of India (CJI) D.Y. Chandrachud objected to it, saying he has already made it clear that the court would not deal with it as it is a common concern of both heterosexual and non-heterosexual couples, and therefore, can be delinked from the present case, and dealt with appropriately in a pending litigation. Besides, the respondents, accepting the decision of the bench, had avoided making arguments on the issue.
But Singhvi emphasised that the grievances pertaining to the notice and objection regime under the SMA is at the heart of the issue, and therefore, the respondents could be given some more time to argue on that, if it is necessary to comply with the principles of natural justice.
The CJI pointed out that the challenge to notice provisions of SMA postulates a verdict in favour of the petitioners, which cannot be presumed before the judgment is pronounced in the case. Justice Hima Kohli felt that Singhvi’s argument is like putting the cart before the horse.
Suggesting that he is arguing cumulatively, Singhvi suggested to the bench to hold a subsequent hearing on the issue of notice and objections. He submitted that the prayer for striking down notice and objection regime of SMA is an essential and indivisible component of the petitioner’s prayer of marriage equality. Short of that, it would be a recognition of same sex marriage, without equality, he told the bench. “You may declare marriage, but not equality without recognising the extreme vulnerability of the class which faces this notice and objection regime,” he remarked.
Singhvi submitted that the petitioners do not merely seek a declaration of the right to marry, but the right to marry under SMA, by interpreting it to enable solemnisation and registration of marriages.
“We need the right to access a social institution called marriage on equal terms. Therefore, your interpretation should apply to existing law in a non-discriminatory fashion. It is neither judicial legislation nor judicial surgery. There is no new law making here,” Singhvi clarified.
Singhvi countered the argument that parliament is the right forum to grant legal recognition of marriage equality, by arguing that the Supreme Court has interpreted entrenched rights against majorities. Reminding the court of its counter-majoritarian character, Singhvi said that unelected judges enforce constitutional rights against elected legislatures. The Constituent Assembly made the constitution, but this court made the constitution supreme, by creating a basic structure doctrine, Singh told the bench. He made a vehement plea not to be swayed by the elected legislature versus unelected judges argument advanced by the respondents.
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Singhvi explained that social acceptability is at the heart of SMA, and therefore, it is wrong to examine how the framers of the law intended it. The bench, he said, should instead examine SMA in the light of its compliance with the constitution, and its underlying thrust.
Quoting Cicero, who said a room without books is like a body without a soul, Singhvi submitted that an abstract right without recognising the right under SMA is like a body without a soul.
Matters of succession
However, the bench remained unconvinced by Singhvi’s suggestions on how to deal with Section 21A of SMA, which deals with succession to property of parties married under the Act. Section 21A states that where the marriage is solemnised under this Act of any person who professes the Hindu, Buddhist, Sikh or Jaina religion with a person who professes the Hindu, Buddhist, Sikh or Jaina religion, section 19 and section 21 shall not apply and so much of section 20 as creates a disability shall also not apply.
Under Section 19, the marriage solemnised under this Act of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jaina religions shall be deemed to effect his severance from such family. Under Section 20, subject to the provisions of section 19, any person whose marriage is solemnised under this Act shall have the same rights and shall be subject to the same disabilities in regard to the right of succession to any property as a person to whom the Caste Disabilities Removal Act, 1850 (21 of 1850), applies.
As Singhvi tried to offer a minimalist interpretation to suggest a gender-neutral reading of SMA and asked the bench to consider leaving matters of succession to future litigation, the bench remained unconvinced.
Senior counsel Mukul Rohatgi, as a way out of the conundrum facing the bench, suggested that the court can stay free of SMA, and instead consider proposing affidavits of marriage to be registered under Section 18 of the Registration Act, as proof of valid marriage of non-heterosexual couples.
The hearing will continue on Thursday.