The Supreme Court on Thursday, May 11 reserved its judgment in the LGBTQ+ community’s marriage equality rights case.
Even as the five-judge constitution bench concluded its hearing, which lasted 10 days, the petitioners before the apex court made full use of the opportunity to rebut the contentions of the respondents.
The bench comprised Chief Justice of India D.Y. Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli and Justice P.S. Narasimha.
Senior counsel Abhishek Manu Singhvi reiterated his view that the Special Marriage Act is discriminatory because of its exclusion of non-heterosexual couples and that this denial of access to marital institution meant inferiority and subordination.
Senior counsel Raju Ramachandran said that his request to strike down Section 4(c) of the Special Marriage Act for excluding the LGBTQI+ community is valid because it means lack of recognition, and denial of equal protection of laws.
He argued that the petitioners in Suprio @ Supriya Chakraborty vs Union of India are an unpopular minority, and therefore, as a protector of an unpopular minority, the top court must walk the full mile and not stop with constitutional declarations. He further emphasised that any declaration in favour of the petitioners would be illusory if the bench did not address the notice and objection regime under the Special Marriage Act.
Ramachandran: This is when the court says that it is the protector of unpopular citizens, this is the situation where I’d ask the court to walk the full mile.#SupremeCourt #MarriageEquality #SameSexMarriage #SameGenderMarriage
— Live Law (@LiveLawIndia) May 11, 2023
He, therefore, requested the top court bench to consider issuing a set of directions, as the court did in the case of Shakti Vahini vs Union of India, which dealt with steps to prevent honour crimes.
Senior counsel K.V. Vishwanathan argued that there is a duty in the Union to recognise the association of non-heterosexual couples as married couples in a non-discriminatory manner.
However, Justice Ravindra Bhat reminded him that the court cannot direct legislation, much less a duty, to be performed by the Union, to avoid discrimination in policy-making.
Vishwanathan responded saying that the lack of workability does not hold back the conferring of the right to marry. He explained this with an example of the post-NALSA legislation, namely, the Transender Persons (Protection of Rights) Act, 2019, which also does not address inheritance and workability issues.
Senior counsel Anand Grover argued that the stigma which British laws attached to the LGBTQI+ community is persisting even today, and recognition of their marriage rights would not only end the stigma but facilitate their social acceptability.
Senior counsel Menaka Guruswamy spoke about adoption rights for non-heterosexual couples. She disagreed it would lead to an adverse impact on children. She spoke about studies conducted in countries which allowed such adoption.
Guruswamy: There are over 50 countries in the world that allow same sex couples to adopt. So that is more than the number of countries that allow same sex marriage.#SupremeCourt #MarriageEquality #SameSexMarriage #SameGenderMarriage
— Live Law (@LiveLawIndia) May 11, 2023
LiveLaw quoted Guruswamy as saying that the “academic results of children raised by same sex parents from birth outperform children raised by heterosexual parents by 0.139 standard deviations on academic tests”.
Senior counsel Saurabh Kirpal described the contentions of the respondents as saying, “I can’t give you everything, so I can’t give you anything.” This, he said, is unacceptable. He argued that there is no legal precedent to suggest that the lack of workability is a barrier to judicial review.
The petitioners’ counsel cited several instances of high courts and the state governments making the top court’s declaration in NALSA workable in specific cases. Declaration, therefore, would go a long way, they said.
To conclude, as advocate Arundhati Katju told the bench as the last counsel, the status of being married itself would confer dignity on the non-heterosexual couples. The rights and obligations which flow from marriage are different, and can be actualised through specific directions, as the court did in NALSA, she suggested.
Lastly, Katju said: “Parliament can turn a blind eye to social problems, but the courts don’t have that luxury.”