The Supreme Court on Tuesday cut short the government’s “value judgment” that genitals decide whether a person is a man or woman, saying that there was no “absolute concept of a man or an absolute concept of a woman” and that gender was “far more complex” than one’s genitals.
A Constitution Bench headed by Chief Justice of India D.Y. Chandrachud was responding to the Centre’s argument that laws, including the Special Marriage Act, recognised only heterosexual marriages between a “biological man and a biological woman”.
‘No absolute concept’
“You are making an important value judgment that the notion of a biological man and the notion of a biological woman is an absolute,” Chief Justice Chandrachud addressed Solicitor General Tushar Mehta, appearing for the government.
“But a ‘biological man’ means a biological man, it is not a notion,” Mr. Mehta protested.
“Of course it is. There is no absolute concept of a man or an absolute concept of a woman at all… A man or a woman is not a definition of what their genitals are, it is far more complex. Even when the Special Marriage Act says ‘man’ and ‘woman’, the very notion of a man and a woman is not an absolute on what genitals you have,” Chief Justice Chandrachud shot back.
But Mr. Mehta continued to submit that a “biological man means the genitals one has”, though adding that he did not want to use that “expression”.
Societal acceptance
He argued that the law differentiated between a man and a woman. “Your Lordships will have to otherwise decide that marriage is a fundamental right de hors (not including) the law,” the Solicitor General said.
The government argued that society may not accept that same-sex marriages ought to be on par with heterosexual marriages.
Justice Sanjay Kishan Kaul, one of the Associate Judges on the five-judge Bench, said that it was “not mandatory that the whole society should accept something” for the Court to recognise rights.
“But several Acts would become unworkable… I may have the biological attributes of a man, but I consider myself a woman… Should the Code of Criminal Procedure treat me as a woman then?” Mr. Mehta questioned.
‘Laws not static’
Senior advocate Mukul Rohatgi, leading the arguments for the petitioners who are seeking legal recognition of same-sex marriages through a broader reading of the Special Marriage Act by interpreting it as gender-neutral, said that laws could not remain static.
“Laws will change, society will evolve and the courts need to rule when called upon by citizens who seek recognition of their fundamental rights to equality and equal treatment to lead a dignified life... We seek a declaration that we have a right to get married. This should be recognised by the state by virtue of an imprimatur of the court. Our right should be made part of the Special Marriage Act. Once that happens society will recognise that we have equal rights. Then two people can hold hands and walk in the streets without social stigma following them everywhere,” Mr. Rohatgi submitted.
‘Not lesser mortals’
He said that it was not enough to remove criminality from the bedrooms of same-sex partners. “We want to enjoy the full panoply of rights available to our heterosexual brethren. We want to enjoy the unit of family. We want privacy and freedom to move freely. The government cannot treat us as lesser mortals and tell us to remain content just because homosexuality has been decriminalised,” Mr. Rohatgi said.
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He said that the petitions were not delving into the personal laws of different religions, but only seeking a wider interpretation of the Special Marriage Act to include same sex marriages.
Civil union option
At one point, the Chief Justice asked whether the court could develop a situation of a “civil union” and leave the legislature and society to evolve into a state of greater acceptance over the future.
At this, senior advocate Menaka Guruswamy and advocate Arundhati Katju intervened to point out that most legal rights flow from blood relationships and “full marriages”.
“Anything short of a full marriage, we will have to approach the court again and again for redressal of individual discriminations,” Ms. Guruswamy submitted.
Mr. Rohatgi said that Ms. Guruswamy’s submissions touched upon “absolute day-to-day issues”.
“Do you know, My Lords, under the Income Tax Act, two partners cannot give gifts to each other without paying tax,” he pointed out.
Incremental approach
The court said it was proceeding on an “incremental canvas” in the case.
“Incremental changes in issues of societal ramifications is a better course to take. We will not step into personal laws. We will only examine if the Special Marriage Act can be interpreted in a manner to make it gender-neutral. Period,” Justice Kaul said.
Senior advocate Kapil Sibal, for Jamiat Ulema-i-Hind, said that the court should either go into everything or nothing and not examine the issue “piecemeal”, leaving confusion in its wake.
“The immediate question here before you is not the right to equality, dignity, privacy of LGBT persons. The question is the right of conferment of socio-legal status and whether that can be done by judicial adjudication,” Mr. Mehta said.
‘Windows will open’
He said the Court should not leave “a few windows open” as this would pave the way for all the doors and even the entire house to open in the future.
“The windows are willingly going to open, no matter what we decide… The windows have already started opening up,” Chief Justice Chandrachud responded.
Mr. Mehta said that the “acceptance of any relationship by the society is never dependent on legislations or judgments”.
“It can come from only within the society,” he said.
