On Monday, the Supreme Court directed that a five-judge bench will hear a clutch of petitions relating to same-sex marriages.

Since November, several petitions have been pending before the Supreme Court challenging the constitutionality of several laws that allow for marriage only between heterosexuals. While the petitioners have argued that these provisions are discriminatory against the LGBTQ+ community and infringe on their fundamental right to dignity and privacy, the Centre has opposed these petitions, arguing that marriages can only be between heterosexuals.

What is the petitioners’ stand?

There are 19 petitions before the Supreme Court of India challenging various laws relating to heterosexual marriages. The petitioners include several same-sex couples who have not been able to get their marriages solemnised due to the current legal framework.

The crux of the petitioners’ case is that certain laws, such as the Hindu Marriage Act and the Special Marriage Act, prescribe that a marriage has to be between a man and a woman, therefore excluding same-sex couples. While some laws, such as the Foreign Marriage Act, which regulates the marriage of Indian citizens outside India, do not actively prohibit marriages between same-sex couples, officials have refused to register such marriages.

This, the petitioners have submitted, infringes a person’s fundamental right against discrimination, which is guaranteed under Articles 14 and 15 of the Indian Constitution. It also violates their right to freedom of expression under Article 19 and their right to privacy and dignity under Article 21.

The petitioners have stated that, over the years, the Supreme Court has granted rights to people from the LGBTQ+ community. While decriminalising same-sex relationships under Section 377 of the Indian Penal Code, the court held that members of the LGBTQ+ community should have all the constitutional rights guaranteed under the Constitution.

Not letting them marry robs them of dignity and restricts them from fulfilling their relationship. Married couples get several privileges, such as adoption rights, inheritance claims, tax benefits and so on, which same-sex couples cannot avail of presently. Further, the right to marry an individual of one’s own choice also falls under the right to free expression and life, the petitioners have argued.

Therefore, the petitioners have asked the court to either strike down these provisions prohibiting same-sex marriages or to interpret them in such a way, so that it accommodates non-heterosexual marriages also.

Gender rights activists during a Delhi queer pride parade. Credit: Sajjad Hussain/AFP

What is the Modi government’s stand?

In an affidavit submitted on Sunday, the Union government has opposed all these petitions. It has argued that marriage “presupposes a union between two persons of the opposite sex” and that the law explicitly mentions marriage has to be between a “biological man and a biological woman”. These laws, it submitted, are based on customs, rituals and societal practices. According to the government, same-sex marriages contravene the “Indian family concept” of marriages being heterosexual.

Since the laws are designed keeping heterosexual couples in mind, it argued, the court expanding the ambit would make these laws unworkable and also go against the legislative policy of the government. Further, it said that regulating marriages falls under the domain of the legislature and that the court should not intervene in them. Marriages are not a private matter, the Centre submitted, but have “public significance” as well since they form the “building block of [a] society” and promote social stability. Therefore, the government is the appropriate authority to regulate such relationships.

Several other laws, such as the Indian Penal Code, provide specific rights to wives in a relationship, against domestic violence, dowry deaths and so on. Permitting same-sex marriages will also cause difficulty in implementing these provisions, the government has submitted.

The government has also argued that not allowing for same-sex marriages does not affect any individual fundamental rights. It said that there is no fundamental right that the government has to recognise a particular form of social relationship. Presently, same-sex marriages are not unlawful, it argued. It is just that the state does not recognise these marriages.

Further, it has submitted that recognising only heterosexual marriage is not discriminatory under the Constitution since there is an intelligible difference between heterosexual and same-sex marriages and there is a rational objective that the government wants to serve through this discrimination, that is ensuring social stability in familial relationships.

What has the court said till now?

On Monday, when the matter came up for hearing, Chief Justice DY Chandrachud said that given the “seminal importance” of the matter and the legal issues involved, a Constitution bench of five judges should hear the case starting April 18. Since all Constitution bench matters are live-streamed, the arguments will be available for the public to watch online. Earlier, when the matter was before the Delhi High Court, the petitioners wanted the hearings to be live-streamed, arguing that the case was of national importance. However, the Centre had opposed this demand.

In a previous hearing, on November 25, the court had asked the Centre to file a response to these petitions. Further, in January, the Supreme Court clubbed and transferred similar petitions to itself that were pending before High Courts in Delhi, Kerala and Gujarat.