Supreme Court seeks govt response on including same-sex marriage under Special Marriage Act
The government’s response to petitions that the Special Marriage Act be changed to allow same-sex marriages to be celebrated was sought by the Supreme Court on Friday. The Special Marriage Act of 1954 provides a legal form of marriage for couples who are unable to wed under their country’s laws.
Supriyo and Abhay Dang, partners, asserted that the denial of same-sex marriage constituted discrimination that undermined the dignity and sense of fulfilment of LGBTQ+ couples. The arguments would be heard by a panel that included Justice Hima Kohli and Chief Justice of India D.Y. Chandrachud. Additionally, Uday Raj Anand and Parth Phiroze Mehrotra put up a different argument. The case was set for hearing in four weeks after separate notifications were sent by the Bench to the Union of India and the Attorney General of India. It was given several cases that were still ongoing in front of various High Courts, including those in Delhi and Kerala.
Additionally, the administration had argued in front of the High Courts that the Supreme Court ought to hear the case. Senior lawyers Mukul Rohatgi, Neeraj Kishan Kaul, Menaka Guruswamy, and Arundhati Katju claim that this was a response to the 2018 Navtej Johar case judgement by the Constitution Bench that decriminalised homosexuality. The 1954 Act should offer same-sex couples the same protection it does for inter-caste and inter-religious couples who seek to get married, according to the petitioners.
Mr. Rohatgi asserts that the petition did not affect personal laws, but rather sought to gender-neutralize the 1954 Act. A marriage must be between “two persons,” as required by the Act. According to Mr. Rohatgi, it makes no mention of being the combination of A and B. Around 15 pieces of legislation, according to Mr. Kaul, ensure that those who identify as LGBTQ+ have the right to wages, gratuities, adoption, surrogacy, and other rights.
The key worry, in Ms. Guruswamy’s opinion, is “how can I protect my family.”
Insofar as it denies same-sex couples both legal rights and the social approval and status that come with marriage, the Act is extra-constitutional. The Special Marriage Act of 1954 should allow any two persons, regardless of their gender identity or sexual orientation, to get married, claims the petition.
If not, it was argued that the Act should be considered as infringing the basic rights to equality and a life of dignity since “it does not provide for the solemnization of marriage between same-sex couples.” Attorneys Priya Puri and Shristi Borthakur also spoke on the petition’s behalf.
To properly advance the rights of LGBTQ+ individuals, who make up 7% to 8% of the population of the country, equality must be extended to all spheres of life, including the family, the employment, and public areas. Merely decriminalising homosexuality is not adequate.
“Personal liberty is fundamentally about having the freedom to be who we want to be, to love who we want to love, and to live a life that is true to our conscience—without fear of retribution, but also with complete joy and as equal citizens of our nation. Although Supriyo and Abhay are free to love one another, they have yet to build a happy, grateful marriage “The petition made a claim.
It asserted that becoming married entailed a variety of legal responsibilities, privileges, and benefits.
They are automatically entitled to maintenance, inheritance, and consortium rights as well as tax benefits. They are beneficiaries under numerous employment statutes. It was argued that the state continued to protect a spouse even after death through compassionate appointments or pensions. Marriage was crucial for gaining acceptance and respect in society.
Following the decriminalisation of homosexuality in 2018, the Supreme Court urged the LGBTQ+ community to forgive history for its “brutal” repression of homosexuality.
A five-judge Constitution Bench had declared unanimously that Section 377 of the Indian Penal Code, which makes it illegal for adults of the same sex to have private, consensual sex in their homes, was unconstitutional.
It had characterised the 156-year “tyranny” of Section 377 as “irrational, illogical, and capricious.” Homosexuality carries a 10-year prison sentence under Section 377.
The Supreme Court heard petitioners’ arguments in support of a gender-neutral Special Marriage Act, which would sanction unions between those who identify as LGBTQ+. The petitioners argued that by being denied the right to marry, same-sex couples are also denied the fundamental rights of adopting and raising children, enjoying property rights through inheritance and succession, and enjoying mental peace, all of which negatively affect their emotional and physical wellbeing.
The petitioners, two same-sex couples, said that it is discriminatory to deny same-sex marriage, undermining the sense of fulfilment and self-worth of LGBTQ+ couples. “For the members and families of the LGBTQ+ community, institutional and attitude improvements are required. Discrimination against homosexuality must also be outlawed in other spheres of life, such as the workplace, the home, and public places, in order to achieve equality.” They declared.
On behalf of the petitioners, senior attorneys NK Kaul, Mukul Rohatgi, Menaka Guruswamy, and Saurabh Kirpal appeared before the court. They informed the panel that the Supreme Court had ruled in the Navtej Singh Johar case on September 6, 2018, that members of the LGBTQ community cannot be prosecuted or persecuted under Section 377 of the Indian Penal Code because they have a right to individual sexual orientation.
Kaul informed the court that there are as many as nine petitions on the same matter pending before the Kerala and Delhi high courts. The Union government had informed the Kerala High Court that it would seek the transfer of all these cases for a consistent judgement by the supreme court. The SC’s decision to consider the petitions was influenced by these material.
They argued that, in accordance with the Supreme Court’s decision in the Johar case, the LGBT community is entitled to the full range of fundamental rights, including the liberties protected by the Constitution, just like all other citizens. The SC further stated: “The freedom to select a partner, the ability to find fulfilment in intimate relationships, and the right to be free from discrimination are all intrinsically tied to the constitutional protection of sexual orientation. LGBTQ individuals have a right to equal citizenship, to live free from discrimination, and to receive equal legal protection.”
According to Rohatgi, the petitioners are seeking the SC to interpret the SMA in a gender-neutral way so that same-sex couples can be married, register their unions, and live happily ever after like other citizens. The petitioners don’t want to get involved in the debate over trying to change laws that are specific to certain religions, such the Hindu Marriage Act.
Arundhati Katju wrote Supriyo’s appeal, which has its headquarters in Hyderabad. “Personal liberty is fundamentally about having the freedom to be who we wish to be, to love who we want to love, and to live a life that is according to our conscience, without having to fear persecution, but also in complete joy and as equal citizens of this country. Despite being free to love one another, Supra and Abhay (Supriyo, also known as Supriya Chakraborty and Abhay Dang) are unable to build a happy, grateful marriage.”
