NEW DELHI: The Supreme Court on Tuesday made it clear that it will not go into personal laws governing marriages while deciding the pleas seeking legal validation for same-sex marriages and said the very notion of a man and a woman, as referred to in the Special Marriage Act, is not "an absolute based on genitals."
The day's proceedings on the sensitive issue started with Centre's vehement submission that its "preliminary objection" be heard and decided first that the court cannot go into the question which essentially is on Parliament's turf.
Irked over the submission, a five-judge constitution bench headed by Chief Justice D Y Chandrachud said "we are in-charge" and the nature and tenability of the preliminary objection will depend on the canvas the petitioners open up.
Terming the issue involved in the pleas as "complex", the bench asked the lawyers appearing in the matter to advance arguments on the Special Marriage Act, a religion neutral statue.
The Special Marriage Act, 1954 is a law that provides a legal framework for the marriage of people belonging to different religions or castes. It governs a civil marriage where the state sanctions the marriage rather than the religion.
In a day-long hearing, a five-judge constitution bench headed by Chief Justice D Y Chandrachud took note of submissions in favour and against the petitions, and one of them was that even the Special Marriage Act has terms like 'a man and a woman' and hence using term 'person' instead may unsettle existing statutes.
'Not restricted to genitals'
Solicitor General Tushar Mehta, appearing for the Centre, referred to the ramifications for various personal laws if the top court were to validate same-sex marriages and gave illustrations from the Special Marriage Act saying even it has terms like 'man and a woman'.
Senior advocate AM Singhvi, appearing for one of the petitioners, said same-sex marriage was a narrow term and, if the court were to grant marriage equality to gay couples, it should be for consenting adults across "bodily gender and sex spectrum."
"There is a whole range of combinations of persons with special biological features. It is not only men and women. One category is 'sex' and the second category is 'gender'. So a male body can be imbued by female psychological instincts and vice versa and there is LGBTQIA++ (lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual, and ally). This '++' has a whole spectrum of hues and colours," he said.
Mehta countered Singhvi saying the "biological gender was the gender of a person."
The bench said it is not the question of "genitals" and the very notion of the special law having "man and woman" is not restricted to the genitals. "It is not the question of what your genitals are. It is far more complex, that's the point. So, even when the Special Marriage Act says man and woman, the very notion of a man and a woman is not an absolute based on genitals," said the bench, which also comprised justices Justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha.
'Change in society begins from somewhere'
On the issue of using the word 'person' in the Special Marriage Act in place of 'a man and a woman', the law officer said the legislative intent throughout has been a relation between "a biological male and a biological female."
The bench intervened and said, "The very notion of a biological man is absolute...."
The law officer said "Biological man means biological man, there is no notion."
There is a very important value judgement you (law officer) are making that the very notion of the biological man is absolute or that the notion of the biological woman is also absolute, which is incorrect, the bench said.
The law officer said, "Biological man means genitals you have. I did not want to use that expression."
He said, irrespective of other attributes than the genitals, separate marriageable age limits were prescribed for men and women.
Mehta said there were several laws which the court will be making redundant inadvertently if it chose to give legal backing to same-sex marriages.
"I may have the genitals of a man but I am otherwise a female, as possibly suggested, then how would I be treated under the Code of Criminal Procedure. As a woman, can I be called for the section 160 CrPC statement after a particular hour and may say that this is only a notion. I may have the biological genitals of a man, now I am a woman....there are several issues which have to be gone into. Better they are gone into by Parliament," the law officer said.
"There is always change in the society and it begins from somewhere," the bench told Mehta.
'We can keep personal laws out of equation'
On being pointed out the difficulties and ramifications for the Hindu Marriage Act and personal laws of various religious groups if the top court were to hold same-sex marriages valid, the bench said, "Then we can keep the personal laws out of the equation and all of you (lawyers) can address us on the Special Marriage Act (a religion neutral marriage law)."
Mehta referred to the laws on transgender persons and said there are several rights such as the right to choose partners, privacy right, right to choose sexual orientation, and any discrimination is criminally prosecutable.
"However, the conferment of socio-legal status of marriage cannot be done through judicial decisions. It cannot even be done by the legislature. The acceptance has to come from within the society," the law officer said.
During the arguments, Mehta said the problem will arise when a person, who is a Hindu, wants to avail the right to marry within the same sex while remaining a Hindu. "Hindus and Muslims and other communities will be affected and that is why the states should be heard," he said.
"We are not going into the personal laws and now you want us to get into it. Why? How can you ask us to decide it? We cannot be compelled to hear everything," the bench said.
Then this will amount to "short circuiting" the issue and the Centre's stand is not to hear it all, Mehta said, to which the CJI responded: "We are taking a middle course. We don't have to decide everything to decide something."
The bench said though 10 petitioners wanted it to be dealt with on a broader aspect "we are restricting it and we are not going into personal laws etc."
The law officer contended the bench was saying it will not go into the personal laws but the earlier judgments opened this window and so again this (the current proceedings) will open another window later.
"But we cannot bind our future generations long after we are gone and turned to dust," the bench observed.
'Who will be father, mother?'
Senior advocate Kapil Sibal, appearing for Jamiat-Ulama-i-Hind, said the court should either hear the issue in entirety or not hear it at all as a piecemeal approach will cause more harm than good to the group seeking legal validation for same-sex marriages.
"I am a firm believer of the autonomy of an individual...we need to celebrate the union of two people....now, if marriage is allowed and it breaks, then the question will be who will take care of the child. Who will be the father...who will be the mother...," he said.
Senior advocate Mukul Rohatgi, appearing for one of the petitioners, said if rights have to be identical "then I must get the recognition of my union the same way as the recognition of union of two other heterosexuals."
"And since it is based on an implementation of my fundamental rights, I can come to the court and the court need not wait for the legislature. There may not be a mandamus to the legislature. Legislature can or cannot do," he said, adding "If this court has said something, the State has to respect it and once State respects it, stigma will go."
Rohagti underlined that law cannot remain static and changes with time.
"For time being can we not step into personal laws at all and restrict to Special Marriage Act by giving it a gender-neutral interpretation and evolving a civil union concept. From the Navtej Johar (decriminalisation of consensual gay sex) judgement till now there has been an acceptance of same sex relationships in universities...and in this evolving consensus, the court is playing a dialogical role and we know about our limitations," the bench said during the hearing which will continue on Wednesday.
The hearing and the outcome will have significant ramifications for the country where common people and political parties hold divergent views on the subject.
The apex court had on November 25 last year sought the Centre's response to separate pleas moved by two gay couples seeking enforcement of their right to marry and a direction to the authorities concerned to register their marriages under the Special Marriage Act.
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