New Delhi: Even as the five-judge constitution bench went ahead with hearing the petitioners’ counsel on the third day on Thursday, the inability of the counsel to effectively ration their time amongst them threatened to have its impact on the proceedings.
The bench’s concern, as articulated by Chief Justice of India D.Y. Chandrachud, was that unless the counsel rationed their time, it would be impossible to list constitution bench cases. He reminded the counsel gently that there was a reason why his predecessors were not inclined to constitute constitution benches: the disposal rate of the court will suffer, if these benches could not finish their hearings within the available time. Oral hearings are meant to give voice to the people, but their potential should not defeat their very objective, the bench warned the counsel.
Abhishek Manu Singhvi
Singhvi continued his arguments by citing the UK case Ghaidan vs Godin-Mendoza. The case is useful for challenging the assumption that succession rights can be conferred on heterosexual couples, but not on non-heterosexual ones.
The dilemma before the bench was how to interpret the Special Marriage Act (SMA), without appearing to rewrite it, as that would be legislative domain. While interpreting it, should the court appear unduly concerned about the original intention of the lawmakers? The CJI was of the view that the court need not, as the court is not bound by the originalist intention of the Constitution makers. It is obvious that the lawmakers, while enacting the SMA in 1954, did not have the marriage of same-sex couple in their minds. As a statute is inferior to the Constitution, the original intention of the lawmakers need not be a constraint in interpreting the SMA in accordance with the changed times, the CJI felt.
The next question to be resolved was whether the SMA should recognise marriage-like relationships. The CJI felt if the Act applies to marriage-like relationships of heterosexuals, there is no basis to exclude homosexuals from its purview.
Singhvi sought to allay concerns on judicial legislation by submitting that in the UK, a new model is emerging – the courts there have cast doubt on the centrality of statutory language. “The text is not determinative, and the courts will be constrained only by the underlying thrust of a legislation and the limits of institutional capacity,” he suggested while explaining the jurisprudence in the UK.
The CJI was of the view that our law has evolved since 1954. By decriminalising homosexuality, we have also recognised implicitly that same-sex couples also have stable relationships. Singhvi responded saying the SMA provided the framework, as the concept of marriage transcends contemporary understanding and is evolving. The question is whether the law is cast in stone, or is in an evolving framework, he asked. Singhvi was of the view that we have already reached the intermediary stage, and described the challenge before the court as “little done and vast undone”.
Singhvi explained that the institution of marriage is so very important that if it excluded same-sex couples, it would violate constitutional values. Drawing from former Chief Justice of India, late R.C. Lahoti’s observations in a 2005 judgment authored by him, Singhvi said: “Law does not remain static, it does not remain in a vacuum. It is a dynamic institution.”
Notice and objection regime under SMA
Referring to the SMA’s insistence of a formal 30-day notice inviting objections before a couple gets married under the Act, Singhvi said: “Before a formal entry, you are invading my privacy that I should declare my intention in public domain in heterosexual world. Why should I? It is my personal decisional autonomy. It is at the heart of my privacy to decide with whom I will associate. This is a hangover from the Raj. We are now in a totally different world. If you have conditions of marriage, anybody can say that these conditions are not satisfied. This is an invitation to violence. Khap Panchayats will intervene.”
The bench agreed with Singhvi that such provisions under the SMA, if allowed to continue, will destroy the entire purpose of marriage, and destroy the core values of the Constitution. Both the bench and the bar seemed to be convinced that these provisions should not apply equally to both heterosexual and homosexual couples.
Raju Ramachandran
Senior counsel, Raju Ramachandran traced the legislative history of the SMA. He said that originally, there was no codified law and the British required a law of marriage for the British in India. Marriage law contemplated marriage only among Christians. Then came Brahmo Samaj and its demand for a secular law of marriage for the Brahmos who did not mind calling themselves Hindus. It required parties to renounce their religion.
Tracing the history of mandatory notices before recognition of secular marriages, Ramachandran recalled that the colonial Act was known as an Act for the better prevention of clandestine marriages. A provision which originated in a preventive statute now continues in SMA, which self-confessedly is an enabling statute, he told the bench. These provisions are imported; the 30-day notice is the longest ever, he said. “Its effect is to defer the right to get married… Notice requirement amounts to giving a notice…my fundamental right to marry is read into Article 21, I can’t be asked to give notice of the exercise of fundamental right at a future date.In the context of notice regime, by sheer length, the 30-day notice is designed to enable parental families and other busybodies to create road blocks,” he explained.
The CJI suggested that there is a real likelihood this mandatory notice period will disproportionately affect the spouses belonging to marginalised sections. Ramachandran agreed: “A runaway couple has to choose a new residence, as they are not married. Which landlord will give premises. This would be equally true for heterosexual. This should be struck down for all. Totally retrograde provision today. It is obnoxious.”
Ramachandran identified some specific provisions under the SMA which need to go, namely Sections 5 to 10, 14 and 46, which deals with penalty.
Ramachandran emphasised the need to provide for protection of couples seeking recognition of marriage under the Act. The state has a duty to ensure the protection of fundamental rights, he pointed out, citing case laws.
K.V. Viswanathan
Senior advocate K.V. Viswanathan challenged the argument that marriage is meant for procreation by asking why legally there is no maximum age limit for marriages. He suggested that the court is only trying to save the SMA by tailoring its provisions to be brought in line with constitutional values. Therefore, he said, it is not a legislative exercise.
“We have no admission to the institution of marriage, says the sentry. So we have come to the sentinel of qui vive,” he said.
He told the bench that its success will hinge on moulding the relief asked for. “The basic structure doctrine is founded on sound reasoning, that is why it has survived all these years,” he suggested.
Procreation can’t be placed on a pedestal, he said. Today, many couples don’t want children or are content with just one child; therefore, the choice should be available, he said, with which the bench seemed to agree.
He asked the bench to equalise the SMA in order to save it, for example by adding ‘spouse’ wherever ‘husband’ and ‘wife’ are mentioned. He suggested that the minimum age for marriage under the SMA can be prescribed as 18 for the third gender.
Hearing will continue on April 24.