Centre Relies on Parliamentary Debates from 1950s to Oppose Same-Sex Marriage, SC Asks, ‘Was It Legal Anywhere in the World at the Time?’

“At the time the Special Marriage Act was being debated, were there any laws anywhere in the world that allowed same-sex marriage? Perhaps there was no platform or legal foundation for such marriage to be recognised anywhere in the world, when this issue was being debated here.”

A constitution bench comprising Chief Justice DY Chandrachud, and Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha was hearing a batch of pleas for the legal recognition of marriage between non-binary, non-heterosexual, or transgender persons.

Appearing on behalf of the centre, Solicitor-General Tushar Mehta told a constitution bench today that the Parliament had decided to recognise the binary of a ‘man’ and a ‘woman’ instead of adopting a proposed neutral term ‘parties’ in the 1954 act because they intended only couples of the opposite gender to enjoy its benefits.

Relying on the parliamentary debates that preceded the enactment of the Special Marriage Act, Mehta said, “Legislators were aware of homosexuality, but they consciously avoided providing for it, even as a ground for divorce under the act.” Taking the court through the speeches made by the Members of Parliament at the time, Mehta pointed out that there was a brief discussion on homosexuality and a demand for it to be included along with ‘sodomy’ as a ground for divorce. Mehta recalled that there was another demand for a corresponding ground for the dissolution of any marriage solemnised under the Special Marriage Act that accounted for the “feminine vice of lesbianism”. Although neither ‘lesbianism’ nor ‘homosexuality’ ultimately came to be accepted as a part of the final draft that was sent to the president for their assent, Solicitor-General Mehta sought to use these instances to illustrate his contention that the legislators were not unaware of the phenomenon. He said:

“Homosexuality was not something unknown to the members when Special Marriage Act was being debated. Not only did they make a conscious decision to use the words ‘man’ and ‘woman’ instead of the neutrally termed ‘parties’, they also consciously avoided making a mention of homosexuality, even as a ground for the dissolution of marriage. The idea of the Special Marriage Act was to recognise only heterosexual unions.”

Chief Justice Chandrachud, however, was not convinced. He said, “The Special Marriage Act was intended to be religion-neutral, the underlying idea being to create a forum for people to marry outside their faith.”

The top law officer responded, “Yes, the idea was to recognise the marriage between two people of different castes or religions, but one had to be a man, and another had to be a woman. Marriage under the act envisioned a union of a heterosexual couple.”

In support of his contention that the top court ought to exercise judicial restraint, Mehta said that it was bound by four fundamental principles, one of which was that it could not substitute the legislative intent which was manifest. Responding to the petitioners’ submission the Special Marriage Act could be purposively interpreted to make it inclusive of different gender identities and sexual orientations, Mehta said that even if the concepts of homosexuality were not known in the 1950s, as senior advocate Mukul Rohatgi had argued, that was not any reason to rewrite the law. Other than this, Mehta also claimed that it could be clearly understood from the debates that the Parliament had ‘consciously’ decided to limit the act to the gender binary of a man and a woman.

Notably, in response to this argument, Justice Bhat asked, “Mr Solicitor, at the time the Special Marriage Act was being debated, were there any laws anywhere in the world that allowed same-sex marriage?”

The law officer responded, “Not to my knowledge. But there was no prohibition, but…”

Justice Bhat sharply countered, “Even in England, there was a prohibition till much later.” He added that perhaps there was no platform or legal foundation for such marriage to be recognised anywhere in the world when this issue was being debated by the Indian Parliament in 1954.

“You are right,” the solicitor-general conceded, “Till 1956, the regime in India was neither permissive, nor prohibitive. Shastric law or uncodified Hindu law would apply.”

In the ultimate analysis, the solicitor-general urged the top court to leave the question of granting members of the LGBTQIA+ community an equal right to marry, and subsequently, regulating such marriage, to the wisdom of the legislature. A mere judicial declaration that LGBTQIA+ couples have a right to marry, he told the constitution bench, would beg the question of how those rights would be regulated. He said, “Only the Parliament is competent to do this and therefore, this is a matter best left for it to decide.”

Case Title

Supriyo v. Union of India | Writ Petition (Civil) No. 1011 of 2022