MC Explains: What was argued in the same-sex marriage plea at the Supreme Court?

In November 2022, two same-sex couples moved the apex court seeking legal recognition of same-sex marriages in India. One of the petitions, while challenging the constitutional validity of the Special Marriage Act, 1954, asked the court to alternatively re-interpret the Act in a gender-neutral manner where people are not discriminated against due to their sexual orientation.

Subsequently, many petitions were filed in the Supreme Court (SC) seeking the same order. In January 2023, the SC decided to transfer all the petitions from across the country seeking legal sanction to same-sex marriage before itself, as a result of which the SC heard over 10 petitions on the same subject.

Reference to Constitution Bench

In March 2023, upon considering the far-reaching consequences of the case, the Chief Justice of India DY Chandrachud, placed the case before a five-judge Constitution Bench for hearing.

The court made the reference after hearing legal propositions from lawyers appearing for various parties who have filed petitions. Appearing for the government, Solicitor General (SG) Tushar Mehta submitted that recognition of same-sex marriage is a function of the parliament as many aspects are to be looked into.

The cases were heard by a Constitution Bench led by CJI DY Chandrachud and comprising justices SK Kaul, SR Bhat, PS Narasimha and Hima Kohli.

Which lawyers appeared in the case?

Nearly 40 lawyers made submissions in the case. While 17 lawyers argued in favour of the court reinterpreting the Special Marriage Act, 1954, to define marriage to mean a relationship between 'persons' as opposed to a man and a woman, 22 lawyers representing, mainly the government, said that it is the role of the legislature to pass such a law after holding consultations. The Centre has contended that recognition of same-sex marriage should be debated in parliament, rather than in court.

Senior advocates Mukul Rohatgi, Abhishek Manu Singhvi, Menaka Guruswamy, and Jayna Kothari argued for legalisation of same-sex marriage. They addressed various societal and practical issues that same-sex couples face in the absence of legal sanction for such marriage.

SG Tushar Mehta argued for the Union government, while senior advocates Kapil Sibal, Rakesh Dwivedi and Arvind Datar argued for other respondents. They reiterated that the subject is so wide that it will impact many other legislations, hence it is for parliament to take a call on the issue. It is also their contention that parliament represents the will of the people and legalising same-sex marriage will have to be debated there.

What was argued by lawyers in favour of legalising same-sex marriage?

Lawyers arguing for the grant of legal recognition to same-sex marriage argued that the right to marry is a fundamental right under the constitution and it cannot be denied to a certain section of the society owing to their sexual orientation.

They contended that since homosexuality was decriminalised in 2018, the natural course of action would be to grant members of the LGBTQIA+ community the right to marry.

On re-interpretation of the Special Marriage Act, 1954, the lawyers argued that the intention of the legislation was to recognise civil marriages. Hence, recognising same-sex marriage could be done without interfering with personal laws, such as the Hindu Marriage Act.

What was argued by lawyers against legalising same-sex marriage?

The central government made it clear that it was not commenting on the merits of the case but was urging the court to not hear the case as this squarely falls in the ambit of the powers of the legislature. The Centre also told the apex court that it had sought the opinion of states on the issue and urged the court not to hear the case till the states respond. The court however, refused to postpone the hearing.

The lawyers against granting legal sanction to same-sex marriage argued that marriage is not a fundamental right as the state recognises and validates marriage. They further argued that marriage is derived from personal laws and religious conventions, and since such laws do not recognise same-sex marriage, the court cannot grant a declaration making it valid.

The lawyers also contended that the legal recognition of same-sex marriage required the creation of a law, which can only be done by the parliament. They contended that the Special Marriage Act, 1954, recognised marriages between heterosexual couples and re-interpreting it would amount to creation of a law, which the courts cannot do.

The court heard the lawyers for 10 days before it reserved the case for judgment.