The Centre informed the Supreme Court on May 3 that it is willing to form a committee headed by the Cabinet Secretary to consider administrative measures for addressing “genuine, human concerns” faced by same-sex couples in their daily lives in areas such as banking, insurance, etc, without delving into their plea for legal recognition of same-sex marriage.
“The government is positive. Something can be done administratively regarding genuine concerns of same-sex couples. This would require coordination among different Ministries. Therefore, we have decided, subject to the court’s approval, to form a committee headed by none less than the Cabinet Secretary.
“My friends [the petitioners] can give their suggestions about the problems they are facing. The committee will go into them and see, as far as possible and legally permissible, how they can be addressed,” Solicitor-General Tushar Mehta, for the Centre, submitted before a Constitution Bench led by Chief Justice of India D.Y. Chandrachud.
The Bench termed the government’s stand a “step forward” and even a “big, big positive” towards achieving wider social acceptance of the right of same-sex couples to cohabit together.
Chief Justice Chandrachud said the court could now go into whether same-sex couples have a “right to cohabit together in a normal, peaceable environment in our country without facing any form of discrimination, societal or otherwise”.
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The court said the suggestion from the government to form a committee headed by the Cabinet Secretary indicates its readiness to “recognise the incidences of cohabitory relationships” among same-sex couples. It said the Centre’s offer of a forum to address the day-to-day human concerns of the same-sex community would ensure that the petitioners’ movement does not hit a wall, even if they may fail in their endeavour in court.
Senior advocate A.M. Singhvi, for the petitioners, said the LGBTQIA+ community is happy to accept the “low- hanging fruit” the government is willing to offer by forming a committee, which may do some “administrative tweaking” of office orders or circulars. “But you [Constitution Bench] need to declare the real, symbolic and actual meaning of marriage for the same-sex community,” Mr. Singhvi said.
“99% of same-sex couples want to get married. Marriage will give their relationship meaning, purpose and identity. There was a time when we were criminals. Then we became third-class citizens. Now they say we are second-class citizens and have to be content… That is not what the Constitution promised,” senior advocate Saurabh Kirpal, for a gay couple, submitted.
Senior advocate Menaka Guruswamy said same-sex marriage was not an elitist concept. “I speak in many small towns. Young people there want marriage. Do not let them experience what we did. We want a positive enactment of the right to marry,” she pleaded.
“We do not go by either popular morality or segmental morality. We decide what the Constitution says. If you say this is what young people feel, then there will be people on the other side who will throw tons of materials at us, saying this is what the country feels,” Chief Justice Chandrachud reacted.
Justice S. Ravindra Bhat asked the petitioners to consider the government’s proposal as a “building block” for future changes. “This may not be what you have visualised… sometimes beginnings are small, but those small beginnings may be substantial,” Justice Bhat said.
Justice Sanjay Kishan Kaul reasoned that even if the petitioners were to get a judicial declaration from the court legally recognising same-sex marriage, there would be “many, many changes required in administrative and legislative aspects”. Whether the court recognises same-sex marriage or not, these human concerns have to be addressed.
“The government, though reluctant to give same-sex relationships the status of marriage, is not reluctant to sort out the human concerns arising out of them. To that extent, there is consensus,” Justice Kaul said.
Justice Hima Kohli said the petitioners should not go for an “all-or-none approach” and finally reach a dead end.
Chief Justice Chandrachud said the issue could be approached at three levels. One, by making administrative changes which the government could easily do. Two, by tweaking subordinate legislations like rules and regulations, which were also within the government’s domain. Three, by introducing substantive amendments in law to legally recognise the right of same-sex couples to marry by making the Special Marriage Act gender-neutral.
“You seek a right to marry. We are conscious that a mere declaration of the right to marry is not adequate in itself unless it is implemented through a statutory provision which recognises, regulates and confers entitlements on those who are married… Now, you say your right to marry can be located in Section 4 of the Special Marriage Act. Yes, we will consider that argument. But suppose, we consider it and feel that this argument is not as simple as it is supposed to be… That there are too many inter-linkages with other laws, including personal laws, which you may be treading upon and which lie outside the domain of judicial review… Then what? We don’t want you to be in a situation where there is nothing left for you,” Chief Justice Chandrachud explained to the petitioners.