Chief Justice of India D.Y. Chandrachud on April 20 said the moment the Supreme Court gave a “rainbow of hope” to the LGBTQIA+ community by decriminalising homosexuality in 2018, it had implicitly contemplated that “stable, marriage-like relationships” could exist between same-sex persons who do not treat their bond as “chance encounters”.
“The moment we said homosexuality is no longer an offence under Section 377 [of the Indian Penal Code], we necessarily contemplated that there could be a stable, marriage-like relationship between two persons who do not treat these as chance encounters but as something more than that... That for them it is not just a physical relationship, but something like a stable emotional relationship,” Chief Justice Chandrachud observed during the third day of the Constitution Bench hearing of petitions seeking legal recognition of same-sex marriages.
The government had argued in an affidavit that the court had only decriminalised sexual intercourse between same-sex persons in its 2018 judgment in the Navtej Singh Johar case, and not legitimised this “conduct”. The court, while decriminalising homosexuality, had never accepted same-sex marriage as part of the fundamental right to life and dignity under Article 21 of the Constitution. The government had said a same-sex marriage cannot be compared to a man and woman living as a family with children born out of the union.
The petitioners have sought a broader interpretation of the Special Marriage Act of 1954 by making it gender-neutral and read the term ‘spouses’ into the heterosexual usages of ‘man’ and ‘woman’ in the law.
Chief Justice Chandrachud said the Parliament’s intention behind introducing the 1954 Act was to open up an avenue for people who were not falling back or relying on the diktats of their respective personal laws to get married.
Justice S. Ravindra Bhat described the 1954 Act as an “all-enfolding legislation”. “There was also a factor of addressing endogamy, which we cannot ignore,” Justice Bhat said.
Also read: The various petitions around same sex marriage
“In the last 69 years, our law has evolved to recognise the fact when you decriminalise homosexuality, you also realise that these are not just one-off relationships. That these are also comprehensive and stable relationships. Therefore, by decriminalising homosexuality, we have not just recognised fleeting relationships between consenting adults of the same gender, we have also recognised implicitly the fact that people who are of the same sex would be in stable relationships,” Chief Justice Chandrachud said.
Justice Bhat indicated that the “concept” of marriage was not cast in stone.
The court’s remarks serve as a counter to the arguments of the government that the existing concept of marriage as a heterosexual institution has the sanctity of law and religion. The Centre has warned that legal recognition of same sex marriage would “seriously affect the interests of every citizen”.
“The concept of marriage transcends contemporary understanding, used in a constitutional sense, marriage provides a framework, and the framework is evolving and not cast in stone,” Justice Bhat observed.
“It is an evolving and dynamic concept,” senior advocate A.M. Singhvi, appearing for a gay couple Utkarsh Saxena and Ananya Kotia.
However, adding a note of restraint, the court said it has to examine whether it was making policy choices, which was for the legislature to make, and whether it was doing something fundamentally contrary to the scheme of the 1954 Act.
The government, in an affidavit, has argued that any further creation of rights, recognition of same-sex relationships and giving it legal sanctity could be done only by the competent legislature and not through judicial adjudication.
“Marriage is considered to be an aspect of social policy of the nation across the world. It is within the remit of the appropriate legislature, as the elected representatives of the people, to define it, recognise it and regulate it and the choice not to recognise same-sex marriage is simply a facet of the legislative policy,” the affidavit has said.
In an earlier affidavit, the Centre had found the idea of same-sex marriage a threat to the “holy union” of marriage between a biological man and a woman in India where the union is a “sacrament and a sanskar”.
