Oral arguments in the case that could extend marriage rights to same-sex couples in India ended in the country’s Supreme Court on May 11.

The arguments began on April 18.

“We are persons of the same sex, and we have the same rights as like the heterosexual groups of the society this has been held so, and we need not reinvent the wheel and only stumbling block was Section 377, and our actions were subject to criminality, and now it is gone,” said Mukul Rohtagi, a lawyer who represents the plaintiffs, in support of marriage equality. “If our rights are identical and then we should enjoy full array of rights as under Articles 14, 15 and 21.”

The Indian government argued against extending marriage rights to same-sex couples.

“This court is dealing with a very complex subject having a profound social impact,” said Solicitor General Tushar Mehta, who is the country’s second-highest legal official, during the arguments. “All the questions in this case must be left to the Parliament.”

It remains unclear when the court will issue its ruling.

While India’s national capital, New Delhi, was facing a heat wave on April 26, oral arguments in a case that could extend marriage rights to same-sex couples resumed in the country’s Supreme Court.

Solicitor General Tushar Mehta argued on behalf of the Indian government.

“This court is dealing with a very complex subject having a profound social impact,” said Mehta, who is the country’s second-highest legal official. “All the questions in this case must be left to the Parliament.”

Mehta, while arguing before a 5-judge panel headed by Chief Justice Dhananjaya Yeshwant Chandrachud, said the court in Navtej Singh Johar v. Union of India recognized the right to one’s sexual orientation. Mehta further said the real question is who will determine what constitutes marriage and between who.

Navtej Singh Johar v. Union of India was the historic Supreme Court ruling that decriminalized homosexuality in the country in 2018.

Mehta, while arguing for the government, said there would be several unintended consequences for several laws is the Supreme Court rules in favor of marriage equality. He argued Parliament and civil society groups would need to debate the issue.

Mehta said that there is no stigma and legislative policy is clear in the Transgenders Act, where it is widely defined to include all genders. Mehta appealed to the Supreme Court to leave the matter of marriage equality to Parliament and argued the court may not be in a position to address the multiple situations that will arise because of adjudication.

“If they (LGBTQ) have a right how will it be regulated?,” asked Mehta. There are several shades of the spectrum. It is not just gays, lesbians, etc.”

Mehta also spoke about different genders. 

He argued that if LGBTQ people are given recognition, that is unidentified, it may not correspond with Indian laws and it would be impossible to reconcile through a judgment. Mehta also referenced the Dobbs v. Jackson Women’s Health Organization ruling in the U.S. that struck down the Roe v. Wade decision, but Chandrachud said the American Supreme Court ruling that determined a woman has no autonomy over her own body was the wrong judgment.

“We credit ourselves that we have gone far ahead than these, especially Dobbs v. Jackson Women’s Health Organization,” said Chandrachud. “For socially complex issues, leave it to the legislature, that point is well taken.”

Mehta argued India’s Special Marriage Act is for regulating interfaith and inter-caste marriages, but the law was always intended for heterosexual couples and not for same sex couples. 

Justice Shripathi Ravindra Bhat immediately intervened and asked Mehta whether there was a marriage equality law anywhere in the world. He further said that perhaps there was no foundation for such a marriage to be recognized by law in 1956.

Mehta replied there was neither permissive nor prohibitive operation of law in India until 1956. Mehta on the hearing’s sixth day gave a bizarre example to support his argument. 

He asked the court to imagine a situation of incest. Chandrachud argued the example is far-fetched and sexual orientation, and autonomy cannot be exercised in all aspects of marriage.

“It cannot be argued that sexual orientation is so strong that incest be allowed,” said Chandrachud.

Mehta also argued that extending marriage rights to same-sex couples would impact other laws that specifically address heterosexual marriages. He said that issues would arise across the country, and further highlighted it would be difficult to determine who the wife would be in a lesbian marriage and how she would receive rights — spousal support if she has no financial means to support herself and alimony in the case of divorce.

Justice Pamidighantam Sri Narasimha agreed and said it would be an impossible thing to do.

Chandrachud, while hearing Mehta’s argument, noted three points that Mehta was trying to highlight: Adjudication would require substantial rewriting of Indian law, judicial interference in public policy and interference in personal law. The court cannot avoid the interplay between the Special Marriage Act and personal law. 

Personal laws in India regulate marriage, divorce and child adoption for different religions. Hindus under personal laws have the Hindus Marriage Act of 1955, Muslims have the Muslim Personal Law (Shariat) Application Act of 1937, and Christians have the Indian Christian Marriage Act of 1872.

The Supreme Court also noted that extending marriage rights to same-sex couples falls under Parliament’s domain, but the court’s goal is to ensure ways to grant legal rights, social and other benefits to same sex couples without the label of marriage.

Mehta during Wednesday’s hearing shocked the country when he said the government is ready to address marriage rights for same-sex couples by forming a committee that a Cabinet secretary will head.

“(The) issue was some genuine human concerns, and discussion was if something can be done administratively,” said Mehta.

Chandrachud quickly suggested that Attorney General R. Venkataraman and Mehta should meet with the plaintiffs’ lawyers to frame the issue.

“The conceptual domain requires legislative changes, and it is completely beyond our domain,” said Chandrachud. “So we have to see how we frame the conceptual doctrine. Somethings can be done administratively, something can be changed by subordinate legislation, and the third is recognition for the same sex marriage. So we are saying we will decide this issue as a concept, but the govt taking one step forward will be to recognize the cohabitation of same sex couples, which will be a big step.”

Venkataramani began his arguments before the Supreme Court once Mehta concluded.

Venkataramani said that Special Marriage Act is only a law about the institution of marriage and does not create the institution of marriage itself, and that is why it is not discriminatory legislation. Lawyer Rakesh Dwivedi argued on behalf of one of the litigants who opposes marriage equality, and questioned whether there is a fundamental right to marriage in India.

“Is there fundamental right to recognition of marriage?,” asked Dwivedi, while arguing against marriage equality. “Is there a fundamental right to equality in the marriage of heterosexuals? can this be made permissible by the variety of amendments?”

Bhat asked Dwivedi whether the word spouse diminishes the meaning of husband and wife.

“We say I take you as a husband and take you as a wife,” said Dwivedi. “How can we say I take you as my spouse.”

Dwivedi also argued that the case requires social accommodation, and Parliament is in the position to decide how to take the step, when to take it and what lays ahead. He argued that India’s social fabric would break apart if the Supreme Court rules in favor of marriage equality.

Homosexuality is ‘offensive’ to Indian values

A group of former judges, former Indian Police Services officers, and former bureaucrats wrote an open letter to Indian President Droupadi Murmu. They asked her to intervene in order to “save” Indian cultural traditions, religious tenets and social values.

“If we revise the law to make same-sex union rational, acceptable, or moral, it will open the doors to same-sex culture. Our society and culture do not accept same-sex behavioral institution because it is offensive to our values, besides being irrational and unnatural,” the letter reads. “It is widely appreciated that same-sex relationship cannot create long-term or stable institutions; and if they are allowed to adopt children, they cannot maintain stable and long-lasting relationships with their families, parents, relatives and partners. The health and future of such children will be severely compromised.”

The Supreme Court Bar Association in an April 28 resolution said it was highly inappropriate of the Bar Council of India to oppose the marriage equality hearing, because the Supreme Court has the right to decide whether it should adjudicate the issue or leave it to Parliament.

The Washington Blade on April 24 reported that the Bar Council of India, a statutory body that regulates legal practices and education in the country, held a joint meeting with all of the country’s state Bar Councils and passed a resolution concerning marriage equality. The Bar Council of India has requested the Supreme Court leave the issue of marriage equality for legislative consideration.

The Supreme Court will resume hearing on May 10 for final arguments from Mehta and additional considerations from the plaintiffs.

Ankush Kumar is a reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India and Singapore. He recently reported for the Daily Beast. He can be reached at [email protected]. He is on Twitter at @mohitkopinion. 

The Indian Supreme Court on April 18 started hearing a case on whether to extend marriage rights to same-sex couples in the country. 

Chief Justice Dhananjay Yeshwant Chandrachud is heading a panel of five judges to decide if the time is now to extend marriage rights to same-sex couples in the country where being LGBTQ is not a crime, but a same sex couple cannot marry. 

The marriage equality case on the first day of the hearing started with a heated exchange between Solicitor General Tushar Mehta, the country’s second highest legal official, and Chandrachud. The solicitor general argued which forum should be the only constitutional forum that could adjudicate the marriage equality law. Chandrachud wanted to hear the merits of the case first. Mehta insisted on hearing the issue first.

“I am in charge. I will decide. We will hear the petitioners first,” said Chandrachud.” “I will not allow anyone to dictate how proceedings will happen in this court.”

Judges felt a little shocked when Mehta said that if that is the case, let him then take time to see if the government should participate in the hearing. Justice Sanjay Kishan Kaul, one of the five judges who is currently hearing the validity of marriage equality in India, asked Mehta if he meant that the government would not participate in the hearing.

“None of us know what a farmer in south India thinks or a businessman thinks in North India,” said Mehta.

Chandrachud argued that the court would consider any request other than adjournment. After the heated argument in the court, senior lawyer Mukul Rohtagi opened the case for petitioners.

“We are persons of the same sex, and we have the same rights as like the heterosexual groups of the society this has been held so, and we need not reinvent the wheel and only stumbling block was Section 377, and our actions were subject to criminality, and now it is gone,” said Rohtagi, who represents the plaintiffs. “If our rights are identical and then we should enjoy full array of rights as under Articles 14, 15 and 21.”

Article 14 of the Indian constitution deals with equality before the law. 

The article says that the state shall not deny to any person equality before the law or the equal protection of the laws within Indian territory based on grounds of religion, race, caste, sex or place of birth. Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth. Article 21 says no person shall be deprived of his life or personal liberty except according to a procedure established by law.

Rohtagi argued that the court should not wait for legislative action when fundamental rights are involved.

“Our lives are getting passed,” said Rohtagi. “We are getting old, and we need to be respected as in a marriage. Call them queer, call them gay. People look at them differently, and that is a violation of Article 21. A violation of right to life with dignity and also violation of Article 15 when there can be no discrimination based on caste, sex.”

While arguing, Rohtagi brought up the Respect for Marriage Act in the U.S. to support his argument about the validity of marriage equality. When the court was hearing the validity of the marriage equality case, Chandrachud made a note to restrict the discussion on the gender-neutral interpretation and evolve a civil union concept.

Menaka Guruswamy, a senior lawyer, while arguing for the plaintiffs, said she could not designate her life partner for life insurance and that people like her would keep coming to the court to redress individual grievances.

The Washington Blade last November reported that the Life Insurance Corporation of India, a public sector insurance company under India’s Finance Ministry, had said that there is no legal bar for anyone to make their same sex partner a beneficiary in insurance policies in the name of that person.

Mehta during the middle of the hearing said that the question is not granting a socio-legal sanction. It has been clearly saying no one shall discriminate against the trans person, including unfair treatment and denial of employment, and here trans includes LGBTQ and intersex and not what is understood in the conventional sense. He also said that Hindus and Muslims will be affected, and that is why states should be heard.

Chandrachud said that the notion of biological man and biological woman is absolute. The chief justice also said that it is not a question of genitals because the Special Marriage Act’s definition of man and woman is not restricted to genitals.

The Special Marriage Act is an Indian marriage law enacted in 1954 that provides a legal framework for the marriage of people belonging to different religions or castes.

Mehta argued other laws will be redundant if the marriage equality law takes effect. He also requested the Supreme Court consult all states in India for their response as marriage laws are listed in the concurrent list of the constitution that states union governments and state governments can make laws on the subjects enlisted under the concurrent list. Marriage falls under the concurrent list of the Indian constitution.

Kapil Sibal, a senior lawyer for Jamiat Ulema-I-Hind, a leading Islamic scholar organization in India, told the Supreme Court he believes in the autonomy of an individual and that everyone needs to celebrate the union of two people. But Sibal also argued that if same-sex marriage is allowed who will take care of the child? Who will be the father? Who will be the mother? Sibal said that in international examples countries reform all other laws to accommodate these things.

“I am all for same sex marriage but not in this fashion,” said Sibal. “If this is not done as a whole then let it not be done at all.”

Rohatgi said before the bench that the LGBTQ and intersex community has a fundamental right to get married and have it registered like heterogenous brethren of the society.

“I was amazed to hear that we are not equals and we need to be equal to stigmatized lot, and that is why court should step in, and that is why even after 377 judgment we are here,” said Rohatgi. “That is why state is telling us here that we are not equals.”

While highlighting equality and justice for everyone, Chandrachud, said that justice is to each of us, liberty to each of us, equality to each of us, and fraternity for all of us.

On April 19, the second day of the hearing, the central government filed a fresh application and urged the judges to take into account the state governments’ views since “marriage” is on the concurrent list. The central government in its application said that the Department of Legal Affairs has also written to all chief secretaries of state to submit their views on same-sex marriage in case notice is not issued to them. The central government also said that states should submit their views in 10 days so that center can present the case before the Supreme Court.

Rohatgi said that the LGBTQ and intersex community suffers under the majority. He said it is not the law, but a mindset that is bothering LGBTQ and intersex people in their daily life. Rohatgi also said that society accepts what the law is and highlighted to the judges that the LGBTQ and intersex community has no representation in the Parliament and that’s why the community has approached the court. Rohatgi also argued that constitutional morality would become a habit for the people when the same is upheld by the Supreme Court.

“State cannot discriminate against an individual on the basis of a characteristic over which the individual does not have control,” said Chandrachud. “When you see it is innate characteristics, then it counter urban elitist concept. Urban perhaps because more people are coming out of the closet. Government does not have any data also to show that same sex marriage is an urban elitist concept.”

On the third day of hearing, senior lawyer K.V. Vishwanathan appeared for the plaintiffs and argued that if one can be a son, daughter, sister, father-in-law, uncle, aunt and partner, then what holds the court to give marital status to the same-sex couples.

“It is only the sexual orientation which is beyond my control and it is not in conformity with heterosexual norms and thus will not accord you protection like the normal married couples,” said Vishwanathan. “Procreation is a valid defense to negate the right to marriage.”

Vishwanathan also argued that marriage is the coming together of two souls and to be told that it is to be looked at from procreation purpose is fallacious.

“What happens when there is a heterosexual couple when there is domestic violence. What kind of impact on children? So much for being heterosexual,” noted Chandrachud. “What about father coming back home drunk thrashing up the mother and asking money for alcohol? there is nothing absolute at the cost of being trolled. Answers to what we say in court is in trolls and not in court.”

The Supreme Court of the land also noted that the government does not have the data to prove that same-sex marriage is an urban elitist concept. 

“People come out of closet,” noted the Supreme Court.

The central government, in its application, had highlighted that the concept of marriage equality is an ‘urban elitist’ notion.

The hearing on LGBTQ and intersex marriage rights has attracted reactions from across the nation. 

Ranvir Shorey, a Bollywood actor, reacted to Supreme Court’s hearing and said that there is no fixed way to be a man or a woman.

“Better to think of it in terms of polarity, or scale. Those who fuss over binaries ought to remember there is an infinity between the two too,” said Shorey in a tweet. “Jurisprudence is derived from human understanding of nature’s principles. Laws exist so a society can function as a collective, while trying to preserve the rights of the individual. The more our laws move away from nature, the more at conflict we will be with ourselves.”

The Vishwa Hindu Parishad has opposed the marriage equality rights petition and said the “haste” with which the Supreme Court is hearing the petitions for legal recognition of same-sex marriage is not appropriate. The organization also said that the court should have asked for the opinion of religious leaders and experts from diverse fields.

The Bar Council of India, a statutory body that regulates legal practices and education in the country, on Sunday held a joint meeting with all the state Bar Councils in the country and passed a resolution concerning marriage equality. The Bar Council of India has requested the Supreme Court to leave the issue of marriage equality for legislative consideration.

“India is one of the most socio-religiously diverse countries in the world consisting of a mosaic of beliefs. Hence, any matter which is likely to tinker with the fundamental social structure, a matter which has a far-reaching impact on our socio-cultural and religious beliefs should necessarily come through the legislative process only, the meeting unanimously opined. Any decision by the Apex Court in such a sensitive matter may prove very harmful for the future generation of our country.” the release stated.

The Bar Council of India also said that more than 99.9 percent of people in the country are opposed to the idea of marriage equality. The Supreme Court will start hearing the government’s arguments on Tuesday.

Ankush Kumar is a reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India and Singapore. He recently reported for the Daily Beast. He can be reached at mohitk@opiniondaily.news. He is on Twitter at @mohitkopinion.