SC has to walk the tightrope between change & continuity (IANS Analysis)

By Sumit Saxena
New Delhi, April 23 Marriage is a "keystone of our social order... No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family", said Justice Anthony M. Kennedy, who wrote for the majority in the historic decision of the US Supreme Court, which ruled by a 5-to-4 vote that the Constitution guarantees a right to same-sex marriage in June 2015.

Recently, the Indian Supreme Court started hearing a number of petitions seeking to legal sanction for same-sex marriage.

With same sex couples and LGBTQ+ activists making a solid argument in their favour claiming they are not just devoid of the right to equality enlisted in Article 14 of the Constitution but also Article 21, a fundamental right guarantees the right to live a dignified life to every Indian citizen and the central government, vehemently opposing same-sex marriages, saying it is a "mere urban elitist views for the purpose of social acceptance" the debate is turning out to be a lively one.

Petitioners' lawyers have argued that marriage was a union of two people not just a man and woman and change in laws should happen to reflect that same sex couples also desire the respectability of marriage.

Senior advocate Mukul Rohatgi, representing some petitioners, submitted last week before a five-judge bench headed by Chief Justice of India D.Y. Chandrachud, that in the Special Marriage Act (SMA), wherever 'husband' and 'wife' is used, make it gender neutral by using 'spouse', and 'man' and 'woman' should be substituted by 'person', while insisting that a large part of problem will be solved through this interpretation.

However, senior advocate Kapil Sibal, appearing for Jamiat-Ulema-i-Hind, had submitted: "Assuming your lordships were to say it's a valid marriage, suppose the marriage breaks down and they've adopted a child. What's going to happen?... Who will be the father? Who is the woman? Who will get maintenance? These are serious societal consequences of that declaration..."

Sibal stressed that if piecemeal arrangement is done then it will create more complications and in other countries where same-sex marriages were recognised, they overhauled the entire legal framework, "either you take it as a whole, or don't take it at all".

During the hearing, the Chief Justice observed that by decriminalising homosexuality in 2018, it had implicitly contemplated that "stable, marriage-like relationships" could exist between same-sex persons who do not treat bond as "chance-encounters".

Though, the observations made by the apex court, in the hearing so far, herald a sign of positivity for a possibility of same-sex marriages; however, these are early stages of a debate, as arguments yet to be made by Centre and others opposing it.

A question, which grips the mind is that how would disputes arising from same-sex marriages be legally addressed?

For example, if petitioners' arguments are accepted (tweaking the SMA) by the apex court 'husband' and 'wife' is replaced by 'spouse', and 'man' and 'woman' substituted by 'person' how would law deal with these marriages in matters of maintenance, adoption, registration of marriages by state governments etc., How would law recognise, who is a man and who is a woman?

According to the Centre, the framers of the Constitution have specifically provided for a separate entry in the Concurrent List which is a part of the Seventh Schedule of the Constitution conferring a constitutional function of legislating with respect to institution of "marriage".

"The requisite conditions for a valid marriage, regulations of such institutions like making provisions for divorce, alimony etc. Entry 5 of the Concurrent List in the Seventh Schedule reads as under: List III Concurrent List 5 Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law," said the Centre, in an application before the apex court.

The Centre said every component of Entry V above is intrinsically interrelated and any change in any one will necessarily have an inevitable cascading effect on others and it may also have unforeseen consequential impacts on other statutes. The government has vehemently argued that state government and union territories should be made a party in the case.

Also, a post same-sex marriage backlash is expected reaction by religious leaders, possibility of heightened daily risk of discrimination faced by many sex couples, discrimination at work places, access to insurance etc., therefore, the Supreme Court would have to walk on a tight rope address both present and future scenarios to ensure same-sex couples are not subjected to any discrimination and their social acceptance becomes a reality and they get equal dignity in the eyes of the law.

On Thursday, the Chief Justice, during the hearing, said: "What happens when there is a heterosexual couple and child sees domestic violence, will that child grow up in normal atmosphere, of a father becoming an alcoholic and coming back home and thrashing the mother every night and asking for money for alcohol, so much for heterosexual couple, there no absolutes, as I said..."

Therefore, why term heterosexual couples as perfect, if they are not immune to socio-economic pressures, and also a disturbed married life could have a negative impact on the child. The top court observed that incidentally, even if a couple is in a gay relationship or a lesbian relationship, one of them can still adopt. It said so the argument that this will create a psychological impact on the child is belied by the fact that today as the law stands, it's open. It's just that the child loses the benefits of parenthood of both the parents.

Then, why not equate heterosexual couples and same sex couples as equals, and why make the latter a dark letter in a social context. Societal tones, ranging from resigned dismay to bitter scorn, which criticize same-sex marriages would eventually settle down and voices in favour of same-sex marriages claim that same-sex couples would not be permanently barred from the privileges, rights, and social recognition that marriage brings with it.

The apex court noted that "from the Navtej Johar (decriminalisation of consensual gay sex) judgment till now there has been an acceptance of same sex relationships in universities..."

However, it is still baffling how would state governments begin to mainstream same sex couples and begin treating them with parity with heterosexual couples, and would the states modify the laws to accommodate them or would the governments bring laws which may deny parity to same-sex couples with heterosexual couples ?

Voices in favour of same-sex marriages claim that marriage is a policy matter and any social policy is liable to judicial interference if rights are violated. The Constitution prohibits the state from discriminating on the basis of sex and the Supreme Court in Navtej Singh Johar (2018) interpreted "sex" to include "sexual orientation".

But, state governments are not a party to the case, how would the apex court issue direction to the government in the context of legally recognizing same-sex marriages. There are many unanswered questions so far, hopefully the picture will be clear when the apex court resumes hearing next week.

In the end, Justice Kennedy of the US Supreme Court acknowledged that people who strongly believe that marriage should be only between a man and a woman will continue to oppose same-sex marriage but he said that debate should continue, and the marriages must be allowed.

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