India
Why is there friction between the government and the judiciary?
The story so far: A Supreme Court Bench led by Chief Justice of India D.Y. Chandrachud on November 25, issued notices to the Centre and the Attorney General of India, seeking their response to two petitions filed by gay couples to allow solemnisation of same-sex marriage under the Special Marriage Act, (SMA) 1954.
The SMA provides a civil form of marriage for couples who cannot marry under their personal law, and both the recent pleas seek to recognise same-sex marriage in relation to this Act and not personal laws.
The first petition was filed by two men, Supriyo Chakraborty and Abhay Dang, who have been a couple for 10 years. Their petition argued that the SMA was “ultra vires” the Constitution “to the extent it discriminates between same-sex couples and opposite-sex couples”. It stated that the Act denied same-sex couples both “legal rights as well as the social recognition and status” that came from marriage. Senior Advocates Niraj Kishan Kaul and Menaka Guruswamy for the petitioners said that about 15 legislations which guaranteed the rights of wages, gratuity, adoption, surrogacy and so on were not available to LGBTQ+ citizens. The petitioners emphasised that the SMA “ought to apply to a marriage between any two persons, regardless of their gender identity and sexual orientation”.
The other petition was filed by a same-sex couple of 17 years — Parth Phiroze Mehrotra and Uday Raj Anand. Their counsel, Senior Advocate Mukul Rohatgi, argued that the recognition of same-sex marriage was only a “sequel” or a continuation of the Navtej Singh Johar judgment of 2018 (decriminalising homosexuality) and the Puttaswamy judgment of 2017 (affirming the Right to Privacy as a fundamental right). Mr. Rohatgi said the petition did not touch on personal laws but only sought to make the 1954 Act “gender-neutral”. Their plea pointed out that while Section 4 of the SMA permitted the solemnisation of marriage between any two persons, a subsequent section placed restrictions. It said: “The use, in Section 4(c) of the words ‘male’ and ‘female’, as well as the use of gendered language such as the terms ‘husband/wife’ and ‘bride/bridegroom’ in other sections of the Act, limit the access to marriage to a couple comprising one ‘male’ and one ‘female’.”
There are currently a total of nine petitions pending before the High Court of Delhi and Kerala, seeking to recognise same-sex marriages under Acts such as the SMA, the Foreign Marriage Act and codified personal laws. On Friday, the Supreme Court Bench of CJI Chandrachud and Justice Hima Koli transferred the various pending issues before High Courts to itself.
In the landmark Navtej Johar judgment of 2018, the five-judge Supreme Court Bench, which CJI Chandrachud was also a part of, had decriminalised homosexuality and unanimously held that the criminalisation of private consensual sexual conduct between adults of the same sex under the more than 150-year-old Section 377 of the Indian Penal Code was unconstitutional. The judgment had apologised to the LQBTQ+ community for the wrongs of history and had also stated: “Sexual orientation is natural. Discrimination on the basis of sexual orientation is violation of freedom of speech and expression”. Besides decriminalising consensual homosexuality, the judgment had also made other important observations. It had noted that homosexuals had the right to live with dignity and were “entitled to protection of equal laws, and are entitled to be treated in society as human beings without any stigma being attached to any of them.” It had stated that a person’s bodily autonomy be constitutionally protected and that sharing intimacy in private with a person of choice formed a part of the individual’s right to privacy. CJI Chandrachud had also emphasised that the case was not solely about striking down Section 377 but also about the rights of the LGBTQ+ community.
One of the new petitions also placed emphasis on another important judgement of the apex court. In the NALSA vs Union of India judgment (2014), the Court had said that non-binary individuals were protected under the Constitution and fundamental rights such as equality, non-discrimination, life, freedom and so on could not be restricted to those who were biologically male or female.
Late last year, while responding to the pleas seeking recognition of same-sex marriages in the Delhi High Court, Solicitor General Tushar Mehta for the Centre had said that as per the law, marriage was permissible between a “biological man” and “biological woman”. He had also argued that there were misconceptions about the Navtej Kaur judgment. “It merely decriminalises...It does not talk about marriage,” Mr. Mehta had stated. The counsel of the petitioner had rejected this by saying that while the 2018 judgement did not mention the words ‘same-sex marriage’, the “inevitable conclusion” favoured recognising it. In its affidavit opposing the pleas, the Centre had said: “The acceptance of the institution of marriage between two individuals of the same gender is neither recognised nor accepted in any uncodified personal laws or any codified statutory laws”. It also argued against the urgency of the pleas by saying nobody was “dying” in the absence of a marriage certificate.
A total of 32 countries around the world have legalised same-sex marriages, some through legislation while others through judicial pronouncements. Many countries first recognised same-sex civil unions as the escalatory step to recognise homosexual marriage. Civil unions or partnerships are similar arrangements as marriages which provide legal recognition of unmarried couples of the same or opposite sex in order to grant them some of the rights that come with marriage — such as inheritance, medical benefits, employee benefits to spouses, managing joint taxes and finances, and in some cases even adoption. The Netherlands was the first country in 2001 to legalise same-sex marriage by amending one line in its civil marriage law. In some countries, the decriminalisation of homosexuality was not followed for years by the recognition of same-sex marriage, for instance, in the U.S. the former happened in 2003 while the latter in 2015.
