Same-sex marriage in India: Supreme Court lawyers hit out at Bar Council resolution that opposed SC hearings

Two organisations of lawyers in India were pitted against each other today on whether or not the Supreme Court should hear the clutch of petitions seeking the legalising of same-sex marriage and other rights for LGBTQ+ couples. The hearings began last week and have continued this week.

A march in New Delhi, India, for queer rights. Photo courtesy: Instagram/indian_lgbtq_delhi

Today, the Supreme Court Bar Association (SCBA) lashed out at a resolution presented last Sunday by the Bar Council of India (BCI). The BCI had said in its resolution that the Supreme Court ought not to hear these petitions and that trying to change the “fundamental” institution of marriage through judicial proceedings would be “catastrophic”. The resolution urged the Supreme Court to leave any changes to Parliament. This was similar to the argument presented by the Central government before the hearings began.

SCBA has hit out by calling the BCI resolution “highly inappropriate”.

In a statement released today, the SCBA Executive Committee said: “It is the duty of the Court to hear the petition and decide whether the matter should be adjudicated by the Court or left to the wisdom of Parliament.” SCBA also clarified: “This resolution should not be construed in any manner that we are supporting or opposing the petitioner in the matter pending before the Supreme Court.”

The BCI resolution of April 23 had been passed only after consulting with the representatives of all State Bar Councils, said BCI Chairman Manan Kumar Mishra.

It has been the Central government’s stand from the very beginning that the issue of legalising same-sex marriage — or not — could only be decided by the legislature. BCI had opposed these hearings on the grounds that only the legislature was “truly reflective of the will of the people”.

Also read: Same-sex marriage in India: Basic rights not subject to whims and vagaries of majority, says lesbian lawyer

CJI appears to concede that this is a matter for Parliament

As the days of the hearings have progressed, many complexities have arisen. While the initial arguments focused on the rights of same-sex couples to live with dignity and have their relationship legally recognised, the petitions asked if the words “husband” and “wife” in the Special Marriage Act and other acts governing marriage in India could be changed to “spouse”.

The Special Marriage Act of 1954 allows marriage between different castes and religions, and is also applicable to weddings held outside India. However, over the days, it has become clear that dozens of laws are interconnected when it comes to marriage, divorce, maintenance, adoption, succession, and other issues.

Yesterday, Chief Justice of India DY Chandrachud, who is heading the five-judge bench hearing the petitions, said addressing Solicitor General Tushar Mehta, who is representing the Central government, “We take your point that if we enter this arena, this will be an arena of the legislature. You have made a very powerful argument that this is for the Parliament.”

Visualise a situation where a person wants to marry a sibling, says SG

Solicitor General Tushar Mehta argued yesterday that while the right to love and cohabit was a fundamental right, marriage was “not an absolute right”, even for heterosexual people.

Mehta referred to prohibited relationships, such as those involving incest (sexual activity between closely related people).

The solicitor general asked the court to “visualise a situation” in the near future, when a person might seek the legal right to marry a sibling. He was countering the arguments of the right to choice and sexual autonomy that have been raised by the same-sex petitioners.

The judges responded, “But this will be far-fetched. Sexual orientation and autonomy cannot be exercised in all aspects of marriage.”

SC may delink petition for scrapping of 30-notice period from the hearings

The petitions that the Supreme Court has been hearing for several days now include petitions for scrapping the 30-day notice period required under the Special Marriage Act. This provision requires any couple that wishes to marry under this Act to give a 30-day notice to the Registrar of Marriages, thereby giving anyone else enough time to raise an objection to the marriage. Petitioners have said that this could endanger a queer couple’s relationship or even their lives.

Yesterday, the Supreme Court indicated that this issue of 30-day notice period was not related to legal recognition for same-sex marriage, as even heterosexual couples were required to give the same notice period under the Special Marriage Act.

CJI DY Chandrachud said, “This has absolutely no link with the issue of whether same-sex couples can marry.” He also said that this was not a matter for a five-judge bench. “It is a simple issue which can be decided by a two- or three-judge bench.”