SCO Daily: The Case Against Marriage Equality

The Union government created a committee to address issues faced by LGBTQIA+ couples.

Day 7 of the plea for marriage equality for LGBTQIA+ persons concluded today. Last week, the Bench asked Solicitor General Tushar Mehta to confer with relevant Union ministries to suggest administrative measures to give LGBTQIA+ couples the same benefits granted to married heterosexual couples. 

In today’s hearing, the Solicitor General suggested the creation of a committee, headed by a Cabinet Secretary, and invited suggestions on issues to consider from the petitioners. While the petitioners agreed, they stressed that this Committee could not substitute the reliefs they were looking for. They highlighted that marriage is crucial as it gives meaning, identity, and purpose.

On one hand, the Bench agreed with the petitioners and CJI Chandrachud said that they would still deal with the ‘conceptual’ issue of the right to marry under the Special Marriage Act. The creation of a committee merely keeps options open for the future.

However, Justice Bhat stated that while administrative changes may not be the full extent of the relief sought by the petitioners, this was still a notable step towards securing certain benefits to LQBTQIA+ persons. 

Mr. Mehta then began his concluding arguments. According to him, the petitioners wrongly relied on Shafin Jafan (2018) and Shakti Vahini (2018) to argue that the right to marry was a fundamental right. Both cases dealt with widely different facts and neither case dealt with the rights of non-heterosexual couples. The SC was not considering marriage as an abstract but in the context of the case.

Attorney General R. Venkataramani followed and repeated many of Mr. Mehta’s key arguments. The SMA was only meant to facilitate heterosexual inter-caste and inter-faith marriages. It did not leave out LGBTQIA+ persons intentionally or by design, and hence it could not be considered discriminatory. He also repeated that the Court could not re-write the SMA as that would breach the separation of powers between the SC and Parliament. This would violate the basic structure of the Constitution. 

Finally, Senior Advocate Rakesh Dwivedi argued that replacing the words ‘husband’ and ‘wife’ with ‘spouse’ would offend the dignity of married heterosexual couples. Curiously, minutes later he argued that dignity had no connection with marriage. 

On multiple occasions, he posed a question. Why the rush to recognise marriage equality? He likened it to the gradual struggle for women’s rights and pointed out that women still don’t have rights under the Agricultural Reforms Act. Quelling concerns that many will be deprived of marriage rights until they are gradually introduced, he stated that all causes take time to succeed and that all causes have martyrs.’ 

Mr. Dwivedi will continue his arguments next Tuesday. Thanks for tuning in, visit the SCO website for more!