Ready to play facilitator to push government to ease concerns of same-sex partners, says Supreme Court

Conscious of our limitations as a court, says Chief Justice Chandrachud after the Solicitor General argues that recognition of same-sex relationships as marriage is not a fundamental right

Updated - April 28, 2023 10:03 am IST

Published - April 27, 2023 09:54 pm IST - NEW DELHI

Image for representation purpose only.

Image for representation purpose only. | Photo Credit: PTI

The Supreme Court on Thursday said it is ready to play the role of a “facilitator” to push the government into taking administrative steps to bring down “barriers” and ease the day-to-day human concerns faced by cohabiting same-sex partners in areas like joint banking, insurance and admissions of children to schools without touching upon the issue of legal recognition of same-sex marriage.

The seventh day of court hearing of petitions seeking legal status for same-sex marriages witnessed a sharp diversion on the part of a Constitution Bench headed by Chief Justice D.Y. Chandrachud.

Also Read | Right to marry is not absolute, laws regulate marriage, government tells Supreme Court

The petitioners have sought a judicial declaration of nothing less than a “full marriage” status for same-sex couples. However, the court said “we don’t want to go for an all-or-broke approach”.

The turning point came with the government’s “very powerful” — by the Bench’s own admission — arguments that the court would encroach into the legislative arena by giving legal status to same-sex marriages and it would create chaos considering the fact that many statutes, including diverse personal laws, were designed solely for heterosexual marriages.

The court, at one point, conscious of semantics, suggested labels like “contract” and “partnership” rather than “marriage” to describe same-sex unions.

“We understand our limitations as a court. No question about it. But there are so many problems faced by same-sex couples which your Ministries, on the administrative side, can find real solutions… We can act as a facilitator to achieve these solutions. The relationship between the court and the government need not be adversarial… We are just pushing the government. We may not have a model with us, and it is not appropriate for us to devise that model… We can only tell the government that our social ethos have gone forward and can you find a solution for them,” Chief Justice Chandrachud addressed the government.

Also Read | Same-sex marriage hearing | How far can the courts go, asks Supreme Court

The court said unlike its intervention to frame the Vishaka guidelines against sexual harassment at workplace, the case of same-sex marriage was not in one silo. It had linkages everywhere.

Solicitor General Tushar Mehta said he would consult with the government and report back by Wednesday, the next day of hearing. “Except for legal recognition of same-sex relationships as marriage, if there are issues or concerns they face, they can be addressed,” he underscored.

The new turn in the court hearing began when Mr. Mehta said the “right to love, to cohabit, to choose one’s partner and project one’s sexual orientation were fundamental rights. But there is no fundamental right to seek recognition of same-sex relationships as marriage”. He said the petitioners cannot ask the state to take an “affirmative step” towards recognition of same-sex marriages.

Latching onto this submission, Chief Justice Chandrachud observed that “once you recognise the right to cohabit as a fundamental right, there is a corresponding obligation on the part of the state to at least recognise that cohabitation and all incidents of cohabitation must find recognition in law… We are not talking about marriage at all… Homosexual relationships are not a one-off… We are saying that cohabitory relationship should be recognised in terms of creating security, social welfare and address day-to-day concerns faced by same-sex couples in order to ensure that their relationship cease to be ostracised in society”.

Justice P.S. Narasimha said the term ‘recognition’ does not always mean ‘marriage’. “We are talking about associations which entitle them to benefits. These associations should not always be equated to marriage,” he clarified.

Chief Justice Chandrachud referred to how “long cohabitation” legally raised the “presumption of marriage”.

Also Read | Study finds legalisation of same-sex marriage to have positive impact on mental health of LGBTQIA+ individuals

“In olden times, there were no marriage certificates or registration, therefore we had developed the presumption of marriage,” the CJI explained.

Justice S. Ravindra Bhat said a representative democracy had a duty to break down the barriers faced by the LGBTQIA+ community in their daily lives. “A welfare state has to answer to the aspirations of the people. If lack of recognition of their relationship is acting as a barrier, what can the state do? What is the remedy? Can’t cohabiting couples have a joint bank account or nominate one another in insurance policies? You may or may not call it a ‘marriage’, but some label is necessary… You may not recognise marriage, but act to bring down the barriers,” he told the government..

Mr. Mehta said the Centre was conscious of these “human concerns’‘. “We must find a solution to that problem,” he submitted.

“We are more than willing to have the government make a statement addressing the problem… You have Ministries like Social Welfare, Persons with Disabilities and Women and Child who are dedicated for this purpose… We will be happy to get their assistance,” Chief Justice Chandrachud observed.

Justice Sanjay Kishan Kaul asked the Solicitor General to find out whether the Ministries had conducted any study to address these human concerns faced by the community following the decriminalisation of homosexuality in 2018.

“By decriminalising homosexuality, the court had not accepted the legal status of their relationships,” Mr. Mehta responded.

“But the judgment had recognised the existence of the situation. Have you thought about the legislative inconsistencies which affect these people?” Justice Kaul reacted.

“I would assist the court on the barriers affecting them, but without giving any legal recognition to their relationship,” Mr. Mehta reinforced his stand.

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