Stressing that social cohabitation between same-sex couples must find some “recognition” in law, the Supreme Court on Thursday asked the Union government how far it is willing to go in taking “administrative” steps to ensure social security and welfare benefits for such couples even in absence of a legal recognition of marriage.
A Constitution bench, headed by Chief Justice of India Dhananjaya Y Chandrachud, said that when the government concedes that same-sex couples have a fundamental right to cohabit and celebrate their unions, a mere statement of denying them legal recognition of marriage will not augur well with a welfare State.
“Once you accept the fact that same-sex couples have a right to cohabit, there is a corresponding duty on the State to at least recognise that cohabitation…all the social incidents of that cohabitation must find recognition in the law…As a welfare State, as a democratic State, these are aspirations of the people that there has to be some recognition. So, what can the State do?” the bench, which also included justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha, asked solicitor general (SG) Tushar Mehta.
“Why we are trying to push you to this is because we take your point that if the court were to accept the petitioners’ arguments, the court will be legislating and that it’s not the remit of the court. It’s for Parliament or state legislature. But short of that, our law has gone so far now, what will the government want to do to ensure that these cohabitatory relationships or relationships based on cohabitation or association must be recognised in the terms of creating the same sense of security, social welfare? By doing that we also ensure that for the future, these relationships cease to be ostracised in society,” it added.
The bench clarified that when it uses the term “recognition”, it does not mean “marriage”, and that the Centre may think of some other “semantics” like “partners” to identify such unions that make them entitled to certain benefits. “You may not give them a particular recognition of marriage but at the same time there is a need to bring down some barriers,” it emphasised.
Asking the SG to come back with a response on May 3 when the case will be heard next, the bench gave examples of certain basic social functions such as joint bank accounts, joint guardianships and pensionary benefits, to point out that these are “human issues” of “day-to-day life” which the same-sex couples face due to lack of recognition by the State and its institutions.
While the Constitution bench is yet to accept the government’s position that the issue of legal recognition of marriage is beyond judicial determination, it opened a completely new dimension to the case on Tuesday proposing a middle path. However, it is still to be seen how the petitioners respond to this course of action before the court.
Urging the SG to take a “non-adversarial stand” on the issue, the bench said: “From that point of view, we would be more than willing to have the government make that statement before us because the government has ministries dedicated to these purposes…This should come from you because ultimately, we want some elements of a broad sense of a coalition. We are also conscious of the fact that so much a representative democracy should achieve in our country.”
While Mehta submitted that he would have a consultation with the competent authorities in the government about possible solutions to these “sociological” problems, the top court was categorical that there is a lot that the Centre can do even without granting legal recognition of marriage to same-sex unions.
“Of course, you have made your submissions on the legislative side that this will be in remit of Parliament and state legislature, but there are so many issues on which, on the administrative side, you can find real solutions to so many problems. We can act as facilitators to achieve the objective. The relationship of court with the government is not an adversarial relationship. On socio-economic matters, we are constantly pushing the government,” it said.
The bench accepted the SG’s submissions that the same-sex marriage case may also have impact on personal laws even though it has mandated to confine the remit of these proceedings to recognition of such unions under the Special Marriage Act (SMA), adding the government must also remain mindful of the leap that the law has taken and the 2019 Transgender Persons (Protection of Rights) Act exemplifies the progressive vision of legislature.
“We may not have a model within us, and it may not be appropriate for us to devise that model, but we can certainly tell the government that our law has gone so far now. Within what our law has already recognised, can we not ensure that there is a certain degree of recognition? This is completely in line with what you were submitting that the remit of it will be with Parliament. So, therefore we are putting it to you only,” it told the law officer.
Responding that the government also shares the court’s concerns about human problems, Mehta said that he would be taking this up with the authorities in the government. At one point, Mehta said that the queer movement began in 2002 but the court disagreed as it underlined that such relationships always existed in Indian society.
“It’s the other way round. It was the impact of British Victorian morality that we had to forsake much of our cultural ethos. You go to some of our finest temples and look at the architecture. You will never say this is lurid. It shows the depth of our culture…very layered and educative. Look at the profound nature of our culture down the ages,” it observed.
The bench went on to add: “What happened unfortunately was in 1857 and thereafter, we imposed as if it was a code of British Victorian morality on a completely different culture when our culture was extraordinary inclusive and very broad…which is possibly one of the reasons why our religion survived foreign invasions…because of the inclusive and profound nature of our culture…Let’s not transpose Victorian philosophy as our original civilisational philosophy. That will be very difficult to accept.”
It further asked the SG to check if any ministry in the government applied its mind to the variety of issues that may arise following the Supreme Court’s 2018 judgment that not only decriminalised homosexuality but also contemplated that people will form such unions.
“Decriminalisation (of homosexuality by the 2018 judgment) was also a recognition that such a status can prevail. We would like to know if your ministries examined how such problems will be tackled in future. If any thought process has been given to it in the last five years,” the court asked Mehta, who said he would back on this, too, on May 3.
Chayanika Shah, one of petitioners who have challenged the SMA, said: “They [the government] cannot see queer and trans people as equal citizens. They want to keep us in a secondary status. It’s that belief that makes them say that there is no fundamental right to marriage or any relationship like that which goes by any other name! It shows in the callous way that they misread who is a trans person! It shows in the way they ridicule diversity by quoting 72 shades of gender taken from some unnamed arbitrary website!”
Mario D’Penha, who is part of a petition challenging the SMA, Citizenship Act, and Foreign Marriages Act, also criticised the government for its stance. said “I’m curious to see what exactly the Union will offer on May 3 in terms of possible benefits to queer couples. But our government’s refusal to allow the dignity of marriage to queer people is not unique to India. Across the world, conservative politicians have acted in the same way, first offering domestic partnerships, and civil unions. But the demand for the dignity of marriage never subsides. India should recognise this, and give us our due. Marriage is both a bouquet of rights and an issue of dignity. Anything less will amount to second-class citizenship,” the petitioner said.