New Delhi: As Solicitor General Tushar Mehta continued his attempts to unravel the complexity of the judiciary legally recognising marriage between non-heterosexual couples, the Supreme Court’s five-judge constitution bench in Supriyo conceded that it is conscious of the limitations of its intervention.
However, as a price for its non-intervention in the matter, it asked the SG to revert with suggestions on how best to fulfil the aspirations among sexual and gender minorities, which the government had kindled with its own readiness to comply with decriminalisation of consensual adult sex, following its judgment in Navtej Singh Johar and the Transgender Persons (Protection of Rights) Act, 2019.
The bench asked whether the SG could share the thought processes of the various ministries during the last five years in this regard.
The SG agreed to revert to the bench as requested, and make this part of the concern of the bench non-adversarial, irrespective of its legal contentions against the petitioners’ prayers on the Special Marriage Act.
This dramatic window of reconciliation between the petitioners and the respondents on the scope of achieving marriage equality for sexual minorities emerged when the bench was discussing the question of registration of marriages, and how before it became mandatory recently, long co-habitation of heterosexual couples was deemed as a fact of subsisting marriages.
The discussion with the SG then turned to whether the government would be sincere in walking the talk – actually ensuring that the non-heterogenous couples reap the benefits of its various welfare legislations – without the formal recognition of law, if that is proving to be impossible.
The initial indications of the bench’s attitude to the case became apparent with the CJI, D.Y. Chandrachud, asking whether the challenge to the notice provisions of SMA – which were the target of attack by most petitioners – could be assigned to a two-judge bench, if that case was already pending before the court. The bench indicated that it would prefer delinking it from this batch of petitions, as it did not apply to sex at all, and aimed at uniform requirement, addressing the grievances of both heterosexual and non-heterosexual couples.
But the SG’s contentions raised the question of whether the government was sincere in seeking a honourable exit from what appears to be an adversarial case, involving apparent violation of rights of sexual minorities. The SG cautioned about opening a Pandora’s box involving hypothetical claims about guaranteeing rights of couples indulging in incest, and prohibited relationships under the law. The CJI responded to it saying such claims are far-fetched, and not relevant.
The CJI also underlined a basic disagreement with the hypothesis advanced by the SG when the latter described sexual orientation as a matter of choice, rather than an immutable feature.
Justice Ravindra Bhat reminded the SG that there were certain universal rules, which were accepted by the society, as long as they were not codified. The SG responded saying that the state can regulate certain relations, if it feels it is in legitimate state interest to do so.
The CJI conceptualised the SG’s arguments into three problems. One, it involves substantial rewriting of the legislation. Second, it may involve ignoring provisions meant for public policy. Third, the court can’t avoid the interface between the SMA and personal laws.
To this, the SG seemed to add the fourth – that the court can’t read any statute so as to make it apply to two classes differently. “It opens a room for several complications which you can’t conceive of yourself,” he told the bench. Personal laws are interlocked, and he has given only an illustrative list, not exhaustive, he claimed.
The CJI raised an hypothetical issue, asking if one of the partners in non-heterosexual couple can legally adopt a child, and if that child goes to school, would it be treated as a single-parent child by the government. Should that child not have the benefit of cohabitation of the parents, he asked.
The SG replied saying he understood the CJI’s question, that is, if one can adopt, why not two. But he reiterated the government’s concerns over rearing children adopted by a non-heterosexual couple.
Even while promising to revert to the bench on the government’s thought process on extending benefits to sexual minorities, on the basis of presumption of marriage as a result of their long cohabitation (as in the case of heterosexual couples), the SG reiterated his view that decriminalisation of consensual adult sex should not be understood as recognition of any status. However, he conceded that the government can suggest how it can solve their problems instead of granting any legal recognition.
Also read: Nitty-Gritty of Marriage Equality Makes SC Pose Difficult Questions to Petitioners
Justice Bhat intervened to say that semantics is equally important. Instead of spouse, the word ‘partner’ may be considered an appropriate neutral word, he suggested.
The SG promised the bench that whatever administratively can be done, the government will do.
But the SG stuck to his view that SMA is only for heterosexual couples, and intended to address concerns of inter-caste and inter-faith couples. There is no positive obligation to recognise every social and personal relationship, he told the bench.
“All relationships need not be recognised…The state should be very slow in recognising because it is entering the social personal relationship. Legitimate state interests require regulation”, he told the bench.
He sought to clarify that choice of sexual partner may be a fundamental right, but there is no corresponding right to recognition of marriage. There is a clear legislative policy in regulating marriages, he added. “Unequals should not be treated equally, while equals should not be treated unequally,” he suggested.
Classification, he claimed, is based on nature of relationships, not sexual orientation. Pith and substance is the nature of relationship, he added.
Referring to Section 2(k) of the Transgender Persons (Protection) Act, he said it covers all shades and spectrums.
The SG claimed that every expression of love or friendship does not need an institutionally specialised form.
The hearing will resume on Wednesday, May 3.