On 17th October, the Indian Supreme Court delivered a historic judgment on the question of recognition of Same Sex Marriage. The Indian Supreme Court refused to recognize the same sex marriage.
There was a bench of five judges, two judges Justice Dhananjay Yashwant Chandrachud who is also current CJI of India, and Justice Kishan Kaul gave their separate judgment in favor of Same Sex Marriage, but, the other three Judges, Justice Ravindra Bhatt, Justice Narsimha, and Justice Hima kohli pronounced their judgments against the recognition of Same Sex Marriage.
In this case, there were 21 Petitions, the grievance of the petitioners (who were members of the LGBTQIA+ community) was not that society discriminates against them in an informal (and invisible) manner. That is a secondary but an equally important stage of how discrimination pans out against a marginalised class.
Counsels appearing against the Same Sex Marriage made the submissions detailed below-
R. Venkatraman- Attorney General of India
a. This Court has already issued constitutional declarations on the right to form a family, and the right to marry of non-heterosexual persons in Navtej johar v. Union of India (2018). The issue in this batch of petitions relates to fitting the constitutional declaration into relevant laws;
b. The SMA (Special Marriage Act) is a species of the general marriage laws. Marriage is conceived to be a union between heterosexuals across all laws on marriage and procreation is an essential aspect of marriage;
c. At the time when the SMA was enacted, an alternative conception of a union of persons (other than heterosexuals) did not exist. The SMA is intended to regulate marriage between heterosexuals irrespective of caste and religion.
Thus, the omission of non-heterosexual unions from the purview of the enactment would not render the enactment unconstitutional because of under-inclusiveness. The SMA will be under inclusive only when a class of heterosexuals is excluded by the statute;
d. There would be no internal cohesion in the SMA if Section 4 is read in a gender-neutral manner. Such an interpretation would render the implementation of Sections 19 to 21A which link the SMA with other personal and non-personal laws difficult;
e. Courts can use the interpretative tool of reading-in only when the stated purpose of the law is not achieved. Since the purpose of SMA is to regulate heterosexual marriages, this Court cannot read words into the enactment to expand its purview beyond what was originally conceptualized;
f. It is up to Parliament to enact a special code regulating non-heterosexual unions and the specific issues that such unions would face during and after the partnership, after comprehensively engaging with all stakeholders;
g. The course adopted by this Court in Vishaka v. State of Rajasthan (1996) cannot be replicated for two reasons: one, there is no legislative vacuum in the instant case, and second, the non-inclusion of all possible kinds of unions cannot be construed as a constitutional omission;
h. Courts cannot issue directions granting legal recognition to non-heterosexual marriages because it would require the redesigning of several enactments and rules. Marriage rights must be given only through the parliamentary process after wide consultation; and
i. A declaration by this Court granting legal recognition to non-heterosexual marriages accompanied with a scheme of rights would be anathema to separation of powers. This Court must not venture into the realm of policy making and law making.
Tushar Mehta- Solicitor General
a. The institution of marriage occupies a central role in the sustenance and progression of humankind. The prominent components of a marriage are companionship, sexual intimacy, and most importantly, procreation. Marriage (from an individual perspective) serves the purpose of sustaining an individual’s gene pool. From a societal perspective, marriage contributes towards the proliferation of future generations for the sustenance of humankind;
b. The Constitution does not recognize a right to marry. An expression of a person’s sexuality is protected under Article 19(1)(a) of the Constitution. However, marriage cannot be traced to the right to freedom of expression or the right to form unions under Article 19(1)(c);
c. This Court has not previously recognized the right to marry under the Constitution. The observations of this Court in Shafin Jahan v. Ashok KM (2018) and Shakti Vahini v. Union of India (2018) that the petitioners’ right to marry has been violated must be read in the specific context of these judgments. In these cases, the right to marry which is conferred by the legislature to inter-caste and interreligious couples was violated by State and non-State actors,
d. Marriage is a creation of statutes. The State by virtue of Entry 5 of List III of the Seventh Schedule has the power to regulate the institution of marriage. In exercise of this power, the legislature has prescribed various conditions which must be fulfilled before legal recognition can be given to a union. These conditions inter alia include the minimum age to be able to consent to a marriage, the prohibition of bigamy, and the bar against marrying within the degrees of prohibited relationship;
e. The State is not under an obligation to grant legal recognition to every type of relationship. The State only recognizes relationships when there exists a legitimate state interest. The State has a legitimate State interest in legally recognizing heterosexual relationships for the sustenance of society;
f. After the decriminalization of homosexuality in Navtej (supra), members of the LGBTQIA+ community have the freedom and autonomy to choose their partners without restraints on gender and sexuality. However, the decriminalization of the sexual offence does not cast an obligation on the State to grant legal recognition to such relationships or unions. Marriage is a legal privilege. It is conditional upon statutory or societal conditions. The right to choose a partner does not necessarily imply that there is a right to marry a partner of choice;
g. The Courts do not have the power to decide if legal recognition can be granted to a union of non-heterosexual individuals. This is an issue which must necessarily be decided by the legislature, being the elected representatives of the citizens.
h. It would become impossible to deny legal recognition to practices such as incest or polygamy if non-heterosexual couples are granted the right to marry;
i. Marriage is a public institution. It falls in the outer-most zone of privacy and is thus, susceptible to the highest degree of State regulation. This Court in Navtej (supra) only granted protection to the intimate and intermediate zone of privacy of non-heterosexual couples;
j. Both the father and the mother have a significant and unique role in the upbringing of children. In non-heterosexual unions, the child born out of surrogacy or artificial reproductive technology or adopted by the couple would feel the absence of either a father or a mother.
The State does not grant legal recognition to homosexual unions in the form of marriage to protect the interest of the children. This is a legitimate State interest. The petitioners have not submitted sufficient data to back their claim that the interest of a child brought up by a non-heterosexual couple is protected;
k. Granting legal recognition to non-heterosexual unions would dilute heterosexual marriages. For example, in Netherlands, more heterosexual couples have opted for domestic partnerships and cohabitation after legal recognition was granted to non-heterosexual unions. Non-heterosexual unions are not granted legal recognition to protect the institution of marriage;
l. The impugned provisions of the SMA are constitutional because;
i. The legislative debates during the introduction of the SMA indicate that Parliament made a conscious decision to exclude non-heterosexual unions from the ambit of the SMA;
ii. The object of the SMA is to grant (and regulate) legal recognition to inter-faith and inter-caste unions of heterosexual couples. The provisions of the SMA have a reasonable nexus to this object;
iii. There is an intelligible differentia in classifying unions into heterosexual and non-heterosexual partnerships because heterosexual couples sustain a society through precreation. In fact, the Transgender Persons Act also classifies persons into homosexuals and heterosexuals and grants substantive rights to the members of the LGBTQIA+ community in furtherance of the mandate of substantive equality. The Transgender Persons Act recognizes the autonomy of the members of the LGBTQI+ community to choose a partner of their choice;
iv. The constitutionality of a statute cannot be challenged on the ground of under-inclusion;
v. An emerging body of evidence indicates that homosexuality may be an acquired characteristic and not an innate characteristic. Children who have been exposed to homosexual experiences are more likely to identify as a homosexual on attaining adulthood. Thus, this Court must not approach this issue from a “linear reductionist perspective.”
Further, the argument of the petitioners that the SMA is unconstitutional because it is excludes a class based on innate characteristics is erroneous;
vi. The SMA would become unworkable if it is read in a gender-neutral manner. It would also amount to this Court re-drafting a large number of provisions:
A. Section 2(b) read with the First Schedule prescribes distinctive degrees of prohibited relationships for the bride and the groom;
B. According to Section 4(c), the male must have completed twenty-one years of age and the female must have completed eighteen years of age at the time of marriage. Reading the phrase ‘spouse’ in place of ‘male’ and ‘female’ would render the distinctive minimum age requirement for marriage based on gender otiose;
C. The form of the statutory oath which the parties are required to take for the solemnization of their marriage expressly uses the phrases ‘wife’ and ‘husband’;
D. According to Section 21, the rules of succession provided in the Indian Succession Act 1925 govern the succession of property of any person who is married under the SMA. The ISA (Indian Succession Act) prescribes different rules and procedures for succession based on gender. Reading the provisions of the SMA in a gender-neutral manner would impact the interpretation of the provisions of the ISA as well;
E. By virtue of Section 21A, the rules of succession under the HMA (Hindu Marriage act) shall apply for marriages solemnized between a male and female professing the Hindu, Buddist, Sikh or Jain religion. The HSA prescribes different rules for succession based on gender. Reading the provisions of the SMA in a gender-neutral manner would render the HSA unworkable; and
F. Other provisions of the SMA such as Sections 27, 31, 36, and 37 cater to the needs and requirements of a woman in a heterosexual marriage. A reading of the SMA in a gender-neutral manner would impact the interpretation of these provisions.
m. By declaring that non-heterosexual couples have a right to marry, this Court would be granting legal recognition to a new social relationship. Such a declaration by this Court could also pre-empt debates on this issue in the legislature; and
n. The term ‘spouse’ in Section 7A of the Citizenship Act 1955 cannot be read in a gender neutral manner. Section 7A of the Citizenship Act applies to the same class of persons to whom the FMA applies. The FMA expressly uses the phrases ‘bride’ and ‘bridegroom.’ Section 4 of the FMA prescribes the same conditions for the registration of a marriage as Section 4 of SMA.
Kapil Sibal, (Appearing for intervenor):
a. Marriage was defined by the social acceptability of a relationship even before it was codified. The heterosexual nature of a marriage was not introduced by law. Law merely regulated unions which were socio-historically recognised. The law has always differentiated between heterosexual and non-heterosexual unions;
b. A legal recognition of a union is premised on the recognition of a relationship on an individual level, family level, and societal level;
c. The right of a person to choose a partner of their choice is protected under Article 21. However, the legislative recognition of such a choice is not a fundamental right;
d. The right to marry cannot be traced to the right to privacy. The right to privacy postulates the right to be left alone. There is a negative obligation on the State and the society to not interfere with choices of individuals.
However, if the exercise of the right to privacy has a public dimension, the State must regulate the exercise of the right in the larger interest of the community. The State has, in the past, regulated the parameters of choice within the realm of marriage with respect to the number of partners and the age of marriage. Thus, the right to the recognition of non-heterosexual unions is not traceable in Article 21;
e. The South African Supreme Court in Minister of Home Affairs v. Fourie and the United States Supreme Court in Obergefell v. Hodges, Director, Department of Health while recognising the right to marry acknowledged the importance and relevance of social debate and public discourse on the issue. The courts observed that the public has become more accepting of non-heterosexual unions. While it may not be necessary to reach public consensus on social issues, it is still important to have some form of discourse on the issue be it through law commissions, referendums, bills in the legislature, or even High Court decisions;
f. Public engagement also goes hand-in-hand with an incrementalistic approach by the courts or the legislature. For example, Mexico City recognised cohabitation partnership of homosexual unions in 2006. Three years later, their right to marry was recognised.
In South Africa, before the judgment in Fourie (supra), the constitutional court had dealt with the criminalisation of sodomy, the rights of same-sex immigrant partners, the right to adoption of same-sex partners, and the non-inclusion of same-sex partners in a statute providing pension rights;
g. This Court instead of limiting its judgment to the reliefs sought by the petitioners, must also address the following issues:
(i) Whether the LGBTQIA+ community, being a sexual minority, is entitled to be protected even in the absence of a law;
(ii) The recognition of the hindrances faced by LGBTQIA+ unions and the procedure to resolve the difficulties; and
(iii) The necessity of administrative procedures and guidelines recognizing that sexual orientation is a physiological phenomenon and that same sex unions must not be discriminated against
h. The assumption of the petitioners that both law and society must consider non-heterosexual unions as belonging to the same class as heterosexual unions without distinction based on sexual orientation is wrong. The exclusion of non-heterosexual unions from the SMA is not violative of Articles 14 and 15 of the Constitution;
i. Marriage between “any two persons” as provided in Section 4 of SMA and FMA cannot include non-heterosexual unions for the following reasons:
(i) Section 4(a) states that marriage cannot be solemnised if either party has a spouse living at the time of marriage. The SMA, when it was enacted, referred to marriages which had taken place before it came into force. In that case, the word ‘spouse’ could have only been used in the context of heterosexual marriages; and
(ii) The mere usage of a gender-neutral term does not indicate the legislative will to include non-heterosexual unions within the ambit of the enactment.
j. The statute is not under inclusive for impliedly excluding non-heterosexual unions from its purview because Parliament did not contemplate the inclusion of non-heterosexual marriages at the time of enactment. A statute will be under-inclusive only where a statute which must necessarily cover a category excludes them from the benefits it confers. The principle will not apply to persons who are not ex-facie covered by the statute;
k. The interpretative tool of “reading-in” means reading into the text of the statute and not altering it. Reading the word “spouse” into SMA where the words “husband” and “wife” are used would render provisions which are enacted based on conventional ideas about a heterosexual relationship redundant;
l. The legislative regime related to marriage and other allied issues has been enacted in response to the unique challenges that heterosexual marriages face. Even if this Court finds that the Constitution grants a right to legal recognition of non-heterosexual unions, a new legislative regime regulating non-heterosexual marriages must be introduced to respond to the unique challenges they face; and
m. This Court can use its power under Article 142 to fill legislative vacuums to the limited extent of laying down procedural guidelines. The court cannot create substantive rights and obligations to fill a legislative vacuum because it would amount to judicial legislation. This Court can neither direct the legislature to enact a law nor direct the legislature when to enact a law. These are established parameters of separation of powers and must be respected.
Arvind P Datar, (Appearing for one of intervenors):
a. This Court has recognised the right to marry in KS Puttaswamy (9J), Shafin Jahan (supra), Shakti Vahini (supra) and Navtej (supra). However, only Justice Nariman’s opinion in Navtej (supra) held that non-heterosexual couples also have a right to marry;
b. A statute can be struck down after a passage of time only if the rationale of the law ceases to exist as in the case of Section 377 of the IPC where medical research indicated that same sex relationships are not unnatural or against the order of nature;
c. This Court while interpreting provisions of a statute can “iron out the creases but not alter the fabric.” The exercise of reading up can only be undertaken by the Courts when it would be consistent with legislative intention, when it would not alter the nature of the enactment, and when the new state of affairs would be of the same kind as the earlier state of affairs to which the enactment applies;
d. The judgment of the High Court of Madras in Arun kumar interpreting the word “bride” in the Hindu Marriage Act to include transgender and intersex persons is contrary to the judgment of this Court in Madhu Kishwar v. State of Bihar where it was held that male pronouns must not be expansively interpreted to include female pronouns within their ambit;
e. The legal recognition of non-heterosexual unions is a polycentric issue which cannot be resolved solely by the judiciary;
f. Unenumerated rights or derivate rights, which are recognised by courts through judicial interpretation are inchoate rights because they are an exception to the rule of ubi jus ibi remedium. Thus, even if this Court recognises the petitioners’ right to marry, it is not enforceable.
Aishwarya Bhati- Additional Solicitor General, appearing for one of the intervenors:
a. Article 21 guarantees that every child will have the best upbringing. The petitioners have not submitted any data to prove that the interests of the child would be protected if they are raised by non-heterosexual parents. A child born to a heterosexual couple is innately adaptable to a similar family environment and naturally seeks out a family environment which is comparable to their birth family;
b. Chapter II of the JJ Act which lays down the General Principles of Care and Protection of Children stresses upon the best interest of the child. Principle xiii states that every child in the juvenile justice system has a right to be restored to the same socio-economic and cultural status as they were earlier in;
c. Men and women are differentiated for the purpose of adoption, assisted reproduction, and surrogate reproduction. For example, the law does not permit a man to adopt a girl child. The scheme of the laws relating to adoption and surrogacy must be revamped for the inclusion of any of the excluded categories of intending parents; and
d. The law protects a child by assuming that they are incapable of entering in contracts, of committing an offence, and of consenting to a sexual relationship. Thus, children cannot be imposed upon with emerging and evolving notions of gender fluidity. Children cannot be made guinea pigs of an evolving social experiment. The state is justified in prescribing reasonable restrictions for adoption, assisted reproductive technology, and surrogacy based on the welfare of children.
Rakesh Dwivedi, (Appearing on behalf of the State of Madhya Pradesh)
a. Only thirty-four of the one hundred and ninety-four countries have recognised marriage between non-heterosexual individuals. Out of the thirty-four countries, the legislature has recognized it in twenty-four of them. At least twenty of the twenty-four countries enacted a framework for registered partnerships or civil unions for granting legal recognition to non-heterosexual unions.
In ten countries, the courts have directed the State to recognise non-heterosexual marriages. The approach taken by the courts in these ten countries is not uniform. The approach is specific to social complexities and legal arrangements in each of the countries;
b. The laws relating to marriage, and the benefits (and rights) which accrue because of marriage are not uniform. The laws take into account religious and regional differences. The principle of non-discrimination in Article 14 and 15(1) does not mandate that marriage must be organised and recognised in a uniform manner. The principle of equality does not postulate uniformity;
c. The principle of non-discrimination in Article 14 is not violated if the law is not “all-embracing.” The legislature can choose to remedy certain degrees of harm;
d. It is for the legislature to decide if non-heterosexual unions must be legally recognised, and what benefits and entitlements must be conferred to the union;
e. Legislations governing unions and the benefits which accrue because of unions do not become unconstitutional after the decriminalisation of homosexuality in Navtej (supra). Decriminalisation of a sexual offence does not automatically confer legal recognition to a union;
f. The opinion of the majority in Navtej (supra) held that homosexuals have a right to form a union under Article 21. This Court specifically observed that a union does not mean marriage. Thus, Navtej (supra) has ruled out the possibility of non-heterosexual marriages; and
g. The observation in Puttaswamy (9J) (supra) that the State has a positive obligation to provide legal protection to enable the exercise of choice was limited to the specific context of data protection. Such an obligation can be imposed on the State only when a right is infringed because of actions of the State.
He submitted that Section 112 of the Indian Evidence Act 1872 which provides that birth during the sustenance of marriage or two hundred and eighty days after the dissolution of marriage is a conclusive proof of legitimacy establishes that procreation is a chief component of marriage. He further submitted that an alteration of the chief component of marriage would render other laws which are premised on the heteronormative nature of marriage unworkable.
Counsel appearing for an intervenor (Akhil Bharatiya Sant Samiti) submitted that the SMA is interwoven with personal law. He argued that the recognition of non-heterosexual marriages under the SMA would impact personal laws on succession, and adoption.
Manisha Lavkumar, (Appearing for the State of Gujarat):
a. Though the rules of marriage continue to evolve, they are still grounded in heterosexual relationships;
b. There is an overarching State interest in excluding non-heterosexual unions from the ambit of marriage because it:
(a) regulates matrimonial conduct;
(b) preserves social order; and
(c) ensures the progression of society in a legitimate manner;
c. The State can impose reasonable restrictions on individual autonomy and consent by introducing conditions such as the number of marriages, the minimum age for marriage and the degrees of prohibited relationship. The heterosexual nature of a relationship is one such reasonable restriction; and
d. The FMA is modelled on the SMA. The FMA also envisages a heterosexual union. Section 23 of the FMA states that the Central Government may recognise marriages solemnised in a foreign country as valid in India only if the law in the foreign country on marriage is similar to the FMA. Since the FMA only includes heterosexual unions, a non-heterosexual marriage solemnised in a foreign country cannot be recognised in India.
Mr. J Sai Deepak, (Appearing on behalf of an intervenor):
a. A judicial sanctioned legal recognition of non-heterosexual union would be a colonial top-down imposition of morality. Such an approach would diminish democratic voices in the process;
b. The issue of lack of legal recognition of non-heterosexual unions is placed differently as opposed to the legislative vacuum on sexual harassment at workplaces. The history and purpose of the SMA does not permit the Court to issue guidelines under Article 141 as it did in Vishaka (supra). The power under Article 141 to issue guidelines must be used sparingly. The power must not be used to take over the functions of the other organs of the State;
c. The judgments of this Court in NALSA (supra) and the Madras High Court in Arun Kumar (supra) suffer from internal and external inconsistencies; and
d. The LGBTQIA+ community is not a homogenous class. The court cannot cater to the interests of a heterogenous class which they constitute. The legislature would be better placed to cater to their needs.
MR SHAMSHAD, learned counsel appearing for an intervenor submitted that a declaration that non-heterosexual couples have a right to marry would conflict with the tenets of religion where marriage is considered a heterosexual union.
PRIYA ARISTOTLE, learned counsel appearing for an intervenor submitted that granting non-heterosexual couples parental rights would affect the children of heterosexual couples.
Sasmit Patra, (Appearing for the intervenor)
a. Granting legal recognition to non-heterosexual unions would require wide ranging amendments to various laws. It is only the legislature which has the capacity and functionality to deal with matters of such wide implication;
b. A declaration by this Court that non-heterosexual unions have a right to marry cannot be implemented without the aid of the legislature and executive; and
c. A social change of this magnitude will not be fructified if the role of the polity in the process is negligent.
Archana Pathak Dave, (Appearing for an intervenor (Ex-Servicemen Advocates Welfare Association)
He submitted that non-heterosexual marriages must not be permitted particularly for personnel working in the armed forces because Article 33 permits restrictions on their fundamental rights. It was submitted that granting legal recognition to non-heterosexual marriages may dilute the disciplinary code in the army, the navy, and the air force, would create conflicts in the workplace over personal and religious beliefs, and would raise concerns about shared facilities such as communal showers and shared rooms.
Manisha Narain Agarwal, (Appearing for an intervenor)
He submitted that the petitioners are seeking social acceptance of their relationships through an order the Court. This Court does not have powers of such magnitude.
MR. ATULESH KUMAR, MS. SANJEEVANI AGARWAL, and MR. SOM THOMAS appearing on behalf of various intervenors adopted the above arguments.
Supriyo @ Supriya Chakraborty v. Union of India (2023)
 (2006) 1 SA 524
 576 US 644 (2015)
 Sodomy Case, 1999(1) SA 6 (CC)
 6 Home Affairs case, 2000(2) SA 1 (CC)
 Du Troit, 2003 (2) SA 198 (CC)
 Satchwell, 2002 (6) SA 1 (CC)
 Arunkumar v. Inspector General of Registration AIR 2019 Mad 26
 (1996) 5 SCC 125