The second day of the hearing before the constitution bench of the Supreme Court on petitions seeking recognition of same-sex marriages began with the Solicitor General, Tushar Mehta, disclosing that the Union government has written to the Chief Secretaries of all the States and Union Territories about the hearing of the case, and making a request to the bench to issue a formal notice to the states.
The petitioners’ senior counsel, Mukul Rohatgi, who continued his submissions this morning, however, doubted the government’s sincerity, saying that if it wanted to involve the states, it could have informed them about the pending case five months ago.
The thrust of Rohatgi’s argument was that it was too late to leave the matter for parliament to decide or to wait for states to make their submissions, and even if the LGBTQI+ people involved a “minuscule minority”, (as they were disparagingly referred to by the two-judge bench in the Suresh Kumar Kaushal case), they deserved to be granted relief by the Supreme Court in this case.
Rohatgi reiterated his view that citizens of a democracy cannot be compelled by an oppressive and colonial mindset. Relying extensively on the Supreme Court’s judgment in Justice K.S.Puttaswamy vs Union of India, delivered on August 24, 2017, Rohatgi emphasised his view that the society has evolved over the years. Although the court had struck down the barrier by decriminalising homosexual behaviour in Navtej Singh Johar in 2018, some sort of barrier still remains, he pointed out.
“The colonial mindset is implicit in the ground whenever we go to public places. Wherever the terms, ‘husband’ and ‘wife’ are used, make it gender-neutral by substituting it with ‘spouse’. If the reference is to a man and a woman, use ‘person’ instead”, he said.
Rohatgi also suggested that a “filtering down” of the orders of the Supreme Court in earlier cases is required. In several Acts, consequential effect should follow, he added.
He sought the bench’s indulgence in making its directions explicit. He thus suggested that the bench could direct that all laws, duties, and obligations flowing from marriage for heterosexual couples will also apply to LGBTQI+ people.
“Our struggle can’t end today in any case. If there is no explicit declaration, we have to come back to the court again and again,” he told the bench.
Referring to deconstructing the heteronormative framework, Rohatgi argued that the LGBTQI+ people have been buried under the pressure of the majority.
“That is not the law, but the mindset which is troubling us in our everyday life. Deconstructing involves, in the absence of right to privacy, a shield against forced homogeneity. Today, I have that shield (thanks to the Supreme Court’s declaration of right to privacy as a fundamental right). It should be made explicit, so that I will not be stigmatised, traumatised,” he submitted.
Rohatgi contended that individual sexuality cannot be put in boxes.
“It is fluid. Sexuality cannot be construed as rigid marital procreational sex. Biological man, biological woman. Procreation. We are revisiting it. Human sexuality cannot be defined narrowly in terms of function, as a means to procreation. It is a narrow and pedantic view. Constitution protects fluidity of sexual experience and right to intimacy,” he elaborated.
Rohatgi reminded the bench that in at least four of its judgments, it had laid down and reiterated that every person is entitled to marry a person of one’s choice. If it applies to heterosexual couple, it will apply equally to us (LGBTQI+ people), he said.
The Supreme Court enjoys moral authority, enjoys public confidence. The prestige of court depends on public confidence, apart from Article 141 (which says that the law declared by the Supreme Court shall be binding), he submitted. Therefore, he suggested that the court’s ability to make a declaration stems from this public confidence, irrespective of what parliament intends to do in the same matter.
Rohatgi told the court that today LGBTQI+ people are outside the closet, and their parents have by and large accepted them. “Their parents want them to settle, have a family. They don’t want them to be ostracised,” he said. He refuted the Union government’s submission that the same sex marriage is an “urban elitist concept,” by citing the example of Nepal.
Drawing from the experience of the LGBTQI+ struggle in the United States, Rohatgi said history is repeating itself in India. After the annulment of Section 377 of the Indian Penal Code, it has to go forward, not stop there, he suggested. He said this can happen with a declaration from the court that the LGBTQI+ are entitled to the same rights as others.
“If this is good for society as a whole, it has to be good for us,” he submitted. He added that in this, the state should come forward gracefully, not grudgingly.
“Decriminalisation is the first step. Affirmative steps remain. Our prayers are affirmative steps. Help us live a dignified life”, he told the bench in an emotional plea.
Arguing that constitutional morality can become a habit only with a declaration from the Supreme Court, Rohatgi drew from the rich jurisprudence from the court on the choice of partner, desire for personal consensual intimacy, earning for love and fulfilment, and universal appeal. “The groundwork has already been cemented by this court; I seek no more as everything is already here,” he said.
Members of the LGBTQI+ community are entitled to a full range of constitutional rights which include companionship, family, walking in public, etc., he told the bench.
Minimum age
The bench was curious to know what will be the minimum age of the partners for a valid marriage, in the event of the court recognising the pleas of the petitioners. The responses of the counsel to the bench’s queries were far from satisfactory, as some suggested if it involved male couple, it would be 21, and if it is female couple it would be 18. Rohatgi suggested with the proposed reform of the law to increase the minimum age of women to get married from 18 to 21, this conundrum may be resolved.
To a large extent, senior counsel Abhishek Manu Singhvi too adopted a similar contention that people of the LGBTQI+ communities are not seeking a new right. According to him, the Special Marriage Act (SMA) must be read in sync with the larger constitutional values, which would include the Preamble, the relevant articles, and non-discriminatory remedies.
Referring to the notice and objection regime under the SMA, Singhvi emphasised that the right to choose is the most enduring of all the relationships, and therefore, he said, it should be regardless of sex and sexual orientation, gender and gender identities.
He told the court that it is on the verge of removing the next brick of discrimination and exclusion after Navtej Singh Johar.
“Little done, but vast undone,” as he put it. He suggested that it is not the state alone which threatens the core constitutional values, such as equality, liberty and fraternity. He suggested that the notice and objection regime under the SMA legitimised the threat from non-state actors and the vigilante groups.
Drawing an analogy with the offence of murder, he said murders are not eliminated simply by making it an offence under the law, but murder is recognised as wrong. Similarly, with the court declaring that same-sex marriages are valid, there would be necessary consequences, he suggested. “Once you declare that I am on the right side of the law, the state is bound to protect me; I am going further. I am invoking freedom of speech and expression under Article 19(1)(a) – right to express one’s gender identity in all its manifestations,” he explained.
Taking a cue from the government’s affidavit which claimed marriage is a vital foundation, community and social validation of relationships, institution, etc., Singhvi argued that because it provides security to couples, (much more so to vulnerable couples), it is important that the LGBTQI+ people are entitled to it. At this point, the CJI, D.Y. Chandrachud, remarked that if a person is in a gay or lesbian relationship, one of them can adopt. Therefore, the theory of psychological impact on children is not convincing enough, he suggested.
Singhvi submitted that marital status is a source of dignity, self-respect, and fulfilment as a core member of society, apart from yielding the ability to have and enjoy family life.
When it was pointed out that family group insurance is not available without marriage, Justice Ravindra Bhat suggested that if there is no prohibition in the law, it is easier to grant that right. The counsel answered that as a baseline, we need a declaration to address those concerns. Justice Bhat responded saying there are certain things which can be done straight away. You have to identify, he told the counsel.
Singhvi submitted that the right to express one’s gender identity is questioned by the state despite the intersection of Articles 14 and 19(1)(a). “If you can’t do it for heterosexual category, how can you justify this in the case of the LGBTQI+?” he asked.
Singhvi explained how the marriage recognition plea is relevant for dignity which involves treating everyone with equal respect. As the ability to participate in the making and remaking of social institutions is central to dignity, removal of exclusions will advance the constitutional goal, he told the bench.
The hearing will continue on Thursday, April 20.