Marriage Equality Case: Key Highlights From The Landmark Hearing Before Supreme Court

The Supreme Court is set to deliver its long-awaited judgment on a batch of petitions seeking legal recognition for queer marriages tomorrow. A five-judge bench, led by Chief Justice of India DY Chandrachud and comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, had started hearing the petitions on April 18, 2023. After rigorous deliberation, the bench reserved its judgment on May 11, 2023, setting the stage for a decision that holds profound implications for the LGBTQIA+ community and their quest for equal rights in India.The crux of the matter revolves around twenty petitions filed by same-sex couples, transgender individuals, and LGBTQIA+ activists. These petitions collectively challenged the provisions of the Special Marriage Act 1954, Hindu Marriage Act 1955, and the Foreign Marriage Act 1969. Specifically, they contended that these legislations, in their current form, do not recognize non-heterosexual marriages, thus perpetuating discrimination against the LGBTQIA+ community. As the nation eagerly anticipates the Supreme Court's decision, we take a closer look at the major developments that have characterized this historic legal battle for marriage equality in India.I. Centre Challenges Maintainability Of The PetitionsAt the outset, the Centre urged the Apex Court to dismiss the batch of petitions on grounds of maintainability. It argued that marriage, a socio-legal institution, could only be created, recognized, and regulated by the competent legislative body under Article 246 of the Indian Constitution. The Centre contended that courts lacked the authority to create or recognize marriages through judicial interpretation or legislative adjustments. Notably, Chief Justice DY Chandrachud questioned the validity of this objection, emphasizing that its nature depended on the case presented by the petitioners. The CJI stated– "Once we have a picture on what is the canvas they're arguing on, we may tell them what is the canvas we want them to argue on."II. Court States It Won't Touch Personal Laws, Limits Challenge To Ambit Of Special Marriage ActBefore commencing the hearing, the court clarified that for now, it would be limiting itself to the ambit of the Special Marriage Act and would steer clear of personal laws. Thus, the challenge pertaining to the Hindu Marriage Act was not taken up. Here, both the CJI and Justice SK Kaul argued for incremental change, suggesting that the Court should focus on a limited issue without entering the realm of personal laws. Justice Kaul remarked– "Sometimes incremental changes in issues of societal ramifications are better. There is time for everything."III. Centre States Pleas For Marriage Equality Represent Views Of "Urban Elitists", Supreme Court DisagreesIn its second counter affidavit, the Centre, while contending that marriage was "an exclusively heterogenous institution", argued that those seeking marriage equality in India merely represent "urban elitist views for the purpose of social acceptance" and that the popular will of people was that marriage be recognised solely amongst heterosexual individuals. The Supreme Court disapproved of the Centre's stand and remarked that it could not dub homosexuality and the idea of marriage equality as an "urban elitist" concept, especially in the absence of any data to back this claim. At this juncture, Senior Advocate KV Vishwanathan shared the inspiring journey of his client, Zainab Patel, a transgender woman who was disowned by her family and forced to beg on the streets. Senior Advocate Jayna Kothari joined in spoke of her client Akkai Padmashali who was also thrown out of her house at the age of 15 years. Both the counsels stated that it was incorrect to call their clients' views as those of the "urban elitists". IV. Supreme Court Talks About Gender FluidityA discussion about gender also took center stage during the hearings as the Solicitor General of India Tushar Mehta argued that biological gender defined a person's gender. This was in the context of the Special Marriage Act using the words "man" and "woman". Chief Justice DY Chandrachud challenged this notion, stating that the concepts of a biological man and woman were not absolute and depended on more than just physical characteristics. However, SG Mehta disagreed and said– "Biological man means biological man, there is no notion." To this, CJI DY Chandrachud said– "There is no absolute concept of a man or an absolute concept of a woman at all. It's not the question of what your genitals are. It's far more complex, that's the point. So even when Special Marriage Act says man and woman, the very notion of a man and a woman is not an absolute based on genitals."V. Indian Culture 'Extraordinarily Inclusive', Remarked Supreme Court During the hearings, Chief Justice DY Chandrachud also emphasized that Indian culture had a long history of inclusivity, and the British Victorian morality had influenced the exclusion of queer...

Marriage Equality Case: Key Highlights From The Landmark Hearing Before Supreme Court

Padmakshi Sharma

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