Same-sex marriage court, Parliament and the court of public opinion

When Supreme Court decriminalised homosexuality in 2018, one question loomed large. If homosexual persons had a right to live together without fearing the law, why shouldn’t the state recognise their right to marry? This is more than an academic question on rights, laws and justice. It is a deeply personal chasm in the lives of countless couples today.

Take Parth Phiroze Mehrotra and Uday Raj Anand, petitioners in one PIL asking SC for same-sex marriage rights. Their reasons are compelling. Uday is a legally recognised parent of two children through the surrogacy route. But his partner Parth, despite being the primary caregiver to the two children, doesn’t have official recognition as a parent. While the children have doting grandparents, cousins and a rich family experience, the absence of a legally recognised relationship with Parth “causes not only immense anguish but also significant practical problems”.

Can SC liberate the Special Marriage Act?

On November 25, SC sought the Centre’s response to thePILs seeking recognition of same-sex marriage under the secular Special Marriage Act, 1954. After all, it starts off promisingly on gender-neutral terms: “Marriage between any two persons may be solemnised under thisAct. ” But then in a heterosexual googly it stipulates: “The male has completed the age of 21 years and the female the age of 18 years. ”

The petitioners hope that that SC will A) follow recent precedents to read down the gendered restrictions as unconstitutional, violative of Articles 14 (right to equality), 15 (right against discrimination) and 21 (right to life and personal liberty) and B) rule that the provision allowing marriage of “any two persons” and the subsequent gender references aren’t in conflict with each other. The Act could thenceforth solemnise marriage between any two persons, regardless of sex. Parth and Uday’s lawyer, Saurabh Kirpal, explains: “A reading down by SC will clarify that wherever gender binary references like husbandwife etc are mentioned this will be read as spouse for a same-sex couple. ” This would leave lesbian couples eligible to marry at 18 while gay couples would only be able to marry at 21. Kirpal says:“SMA stipulates a different minimum permissible age for males and females, and I see no problem following this for same-sex marriages too. ”

What role should the Parliament play?

But the Centre sees plenty of problems, as indicated last year in its response to a similar clutch of petitions (now transferred to SC) in the Delhi HC : “In India marriage is not just a matter ofunion of two individuals but a solemn institution between a biological man and biological woman. ”

Centre’s standing counsel Monika Arora says, “Sex is a much smaller part of life than marriage. ” Her argument is that while no one today has any objection to any two people living together, the issue of same-sexmarriage should not be decided by two judges listening to two advocates but by a larger societal debate and in Parliament.

From Taiwan to the US, the cause of same-sex marriage is actually being propelled through the 21st century via an interplay of judiciary and legislature. Even in India, even if the SC were to allow SMA to solemnise same-sex marriages, a host of gendered legal issueswould still need legislative detangling – adoption, domestic violence, wife’s right to stay in a marital home, divorce etc. So, Parliament will not be able to keep dodging the issue indefinitely.
Meanwhile, the larger public discussion that is being enabled through the courts means that more petitions will be making their way up, as more same-sex couples come to feel that the marriage equality that they are being denied can be theirs if they mobilise to reach for it. Like in the US, isn’t the court of public opinion already with them in India too?