NEW DELHI: India's top court on Thursday observed that its decision to decriminalise homosexuality in 2018 had not just "recognised" same-sex relationships between consenting adults but also the fact that such relationships are "not just physical relations" but something more of a "stable and emotional relationship."
The apex court stated that its 2018 judgment had led to a situation where two consenting homosexual adults can live in a marriage-like relationship and the next step could be to validate their relationship as a marriage.
The five-judge Constitution bench also contemplated whether a relationship between a man and a woman is so fundamental to the Special Marriage Act that substituting them with the term "spouses" would amount to redoing the legislation.
"In the last 69 years (since SMA, 1954), our law had really evolved to recognise the fact that when you decriminalised homosexuality you also realised that these are not one of the relationships but these are comprehensive stable relationships. Therefore, by decriminalising homosexuality we have not just recognised treating relationships between consenting adults of the same gender but we have also recognised implicitly, therefore, the fact that people who are of the same sex would be in stable relationships," the CJI said.
"Once we have crossed that bridge (decriminalising gay sex) then the next question is as to whether our statute can therefore recognise not just marriage-like relationships but the relationship of marriage," the bench said, adding, "This requires us to redefine perhaps the evolving notion of marriage."
The CJI said to put it really bluntly, is the relationship between a man and a woman so fundamental to the Special Marriage Act that for the court to comprehend that it will also include a relationship between a same-sex couple would be completely "redoing the tapestry of the legislation."
"If yes, then obviously we cannot," Justice Chandrachud said.
'Are binary spouses necessary?'
The bench said the law provides a framework for the concept of marriage and it is broad enough to take care of later developments such as same-sex relationships.
"Is the existence of two spouses who belong to a binary gender necessary requirement for a relationship of marriage or has our law sufficiently progressed to contemplate that the existence of binary gender may not be necessary for your definition of marriage?" the court wondered.
Reacting to the trolls against the judges for their observations while hearing the pleas, the CJI said, "There are no absolutes as I had said, even at the risk of getting trolled. Now this has become name of the game for judges to confront. Answers to what we say are in the troll and not in the court."
CJI DY Chandrachud said, after this verdict (in 2018), our country had "constitutionally and socially" reached the intermediate stage which contemplated same-sex couples to be in "stable marriage-like relationships."
"The object of the law (Special Marriage Act) in 1954 was to bring into its fold people who would be governed by matrimonial relationships apart from their personal law is capable of being broadly read according to you so as to take into account more stable relations of same-sex people," the CJI remarked while hearing a batch of petitions seeking legal sanction for same-sex marriage pursuant to Senior Advocate AM Singhvi’s submission that the underlying thrust of Special Marriage Act was to not exclude marriage between two persons of the same gender.
Laying emphasis on the fact that society has evolved in 69 years, the bench said that Special Marriage Act provided the framework for the concept of marriage which transcends and the framework was broad enough for assimilating later developments.
Hinting towards redefining the evolving notion of marriage under the Special Marriage Act, CJI Chandrachud clarified that it in the present case would not use the Constitution or its text for reading down or striking down the act but expanding its meaning in the context of constitutional guarantees.
Indicating that the bench would hear the pleas on a day-to-day basis akin to the Ayodhya case hearing, the CJI also termed the provision of notice of intended marriage under the Special Marriage Act as having the possibility of affecting couples belonging to the most vulnerable segments of society.
'Procreation not valid ground to deny right'
Senior Advocate AM Singhvi for the petitioners argued that the institution of marriage itself is so very important that to deny it to a same-sex couple would be really "contrary to fundamental constitutional values."
Senior advocate K V Viswanathan, appearing for one of the petitioners, said recognition should be given to same-sex marriage and procreation is not a valid ground to deny such couples the right to marry.
He said LGBTQIA (lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual, and ally) people are as much qualified to adopt or bring up children as heterosexual couples.
"Put it this way. Same-sex couples seek the same benefits of marriage save and except for procreation and there are a whole range of benefits which cohabitation and marriage provide which same-sex couple asserts for themselves," the CJI observed.
Senior Advocate Raju Ramachandran appearing for a lesbian couple from Chandigarh termed the provision of "notice of intended marriage" under the Special Marriage Act as "retrograde" and "obnoxious." The notice mandates that a prior 30-day notice seeking objections from the general public is issued before two consenting adults are permitted to solemnize their marriage.
He said that recognising same-sex marriages would protect homosexual couples from the real possibility of the family intervening and putting an end to the relationship.
"There is a very real likelihood and not just a remote possibility that this will disproportionately affect situations in which one of the spouses either belongs to a marginalised community or minority. So, it has a disproportionate impact on those who are the most vulnerable segments of our society," the bench observed.
The arguments in the matter remained inconclusive and will resume on April 24.
(With inputs from PTI)
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