"LGBTQIA marriage recognition may have ramifications on several other statutes": Centre tells SC

New Delhi: The Centre on Wednesday informed the Supreme Court that giving legal recognition to LGBTQIA+ marriage would have ramifications on several other statutes and urged the court to leave it over to parliament to debate and decide.

The Five-judge Constitution Bench comprising of the Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat, Justice Hima Kohli and Justice PS Narasimha is dealing with a batch of petitions pertaining to 'marriage equality rights for LGBTQAI+ community. The hearing is conducted via hybrid mode as two judges in the bench joined the proceedings virtually. Chief Justice of India DY Chandrachud, who is heading the bench, and Justice Hima Kohli and Justice PS Narasimha joined the proceedings in physical mode while Justice Sanjay Kishan Kaul and Justice SR Bhat joined the proceedings virtually.

Solicitor General Tushar Mehta, appearing for Centre, submitted before the top court that they are dealing with a very complex subject having a profound social impact.
He raised the question who will take a call on what constitutes marriage and between whom and urged the court to leave the issue to parliament to decide.

SG Mehta also apprised the court that he has provided a list of various provisions in various laws, which would be irreconcilable with the prayer of petitioners.

He further argued that right to marriage did not compel the state to create a new definition of marriage. Parliament can make that law but it is not an absolute right, he further argued and apprised the bench that law recognises marriage, regulates separation and divorce. Stressing that the very heart of the Special Marriage Act is to recognise a marriage between a conventional man and woman.
SG Mehta submitted request is to re-write some provisions to suit their circumstances.

"I am not opposed to that idea. The question is who has to do it. Parliament can do it," he said and took the court through LGBTQIA+ abbreviation, said that there are 72 shades or variation and therefore + is used and hence it needs to be assessed how this court proposes to deal with all these variations".

He also cited various religious views on religion and said that for Hindus it is sacrament and for Muslim, it is sacred contract. Marriage is recognised as a union between two opposite sex, he said and stressed that intention of the Special Marriage Act was to recognise inter-faith, heterosexual marriages.

The judicial process of interpreting any legislation, even for the purpose of making such legislation constitution compliant, cannot result into a situation where the same enactment applies to one class of citizens differently and to another class of citizens differently. Such internal classification can be made only by the competent legislature and not by the process of judicial interpretation, SG Mehta said.

"If the Court were to attempt making Special Marriage Act or any other Act gender neutral, either by reading some words into it or giving different meaning to the expressions intentionally used by the legislation at the time of framing it, the Court will unintentionally impact the operation of other Statutes which uses the same expressions and one enacted by the same legislature. Such other statutes are neither the subject matter of the present proceedings nor can be amended by the judicial process of interpretation. This can be done only the competent legislature," he argued.

Centre while advancing his arguments relied on various judgement. The Centre also cited various judgement passed by court in foreign countries. Solicitor General relied on Dobbs v. Jackson Women's Health Organisation and submitted that Courts should not intervene in the legislature process.

However, CJI Chandrachud expressed his reservations on Dobbs v. Jackson Women's Health Organization judgement and said India have gone far ahead.

Solicitor General submitted that wherever same-sex marriage is recognised, the legislature had to amend consequential changes in other statutes. Therefore, the argument that petitioners have stated that same-sex marriage shall be allowed and related acts shall be left hanging is not a practical solution.

He further submitted that in the countries wherein same-sex marriage is recognised, the process has been initiated by the legislature and thereafter adopted by the Courts. He submitted that it was only in South Africa which has granted same-sex marriage by way of judicial intervention.

"Therefore, it is clear that societies and countries have acted only after the said concept has gained currency or acceptability in their respective jurisdictions and the elected representatives have acted based on locally prevailing ethos, beliefs and understanding of marriage or civil unions," he argued.

SG Mehta also mentioned portions on same-sex marriage during constituent assembly debates which had happened while clearing Special Marriage Act. Justice Ravindra Bhat remarked that there was no such same-sex marriage law in the world during that time. SG remarked that in India till 1956 there was neither permissive or prohibitive operation of law.
As Solicitor General arguments remained inconclusive today therefore he will continue arguing tomorrow as well.

Meanwhile the petitioner concluded their arguments today. Appearing for one of the petitioner, advocate Karuna Nundy sought a declaration that includes right of queer, non-heterosexual, and same-sex people to marry under the secular legislations, Special Marriage Act 1954, Foreign Marriage Act 1969 and provisions for OCI card holders under the Citizenship Act, 1955. She asserted that Special Marriage Act must include either the term 'non-binary' or 'third-gender spouse' to accommodate marriages between transgender persons.

Another petitioner's lawyer Advocate Arundhati Katju, submitted praying for a positive declaration that a marriage between any two persons may be solemnised under SMA and parties to such marriage will be entitled to all consequential rights and obligations, notwithstanding gender identity and sexual orientation.

She also prayed for a negative declaration binding the state not to deny rights and obligations to married couples whose marriage has been solemnised under SMA. Lastly, she submitted that on the question of having children - as a married couple, having a child is part of human experience and should be equally available to all persons. She suggested that a same sex couple ought to be allowed to start a family under the Juvenile Justice Act.

Various petitions are being dealt with by Supreme Court seeking legal recognition of same-sex marriage. One of the petitions earlier raised the absence of a legal framework which allowed members of the LGBTQIA+ community to marry any person of their choice.

According to one of the petition, the couple sought to enforce the fundamental rights of LGBTQ+ individuals to marry any person of their choice and said that "the exercise of which ought to be insulated from the disdain of legislative and popular majorities." The petitioners, further, asserted their fundamental right to marry each other and prayed for appropriate directions from this Court allowing and enabling them to do so.
One of the petition was represented by Senior Advocates Mukul Rohatgi and Saurabh Kirpal briefed by a team of advocates from Karanjawala & Co. (ANI)