On the second day of India's apex court hearing the case regarding the legality of same-sex marriage in the country, the Centre filed a fresh application, urging the Constitution Bench to take into account the views of state governments since "marriage" is in concurrent list.
The Constitution Bench, headed by Chief Justice of India DY Chandrachud, comprises justices Sanjay Kishan Kaul, S Ravindra Bhat, PS Narasimha and Hima Kohli.
Solicitor General Tushar Mehta, appearing for the Centre, requested the Constitution bench that states be made parties to the proceedings.
On April 18, the government's Department of Legal Affairs wrote to all Chief Secretaries of states to submit their views on same sex marriage, urging them to submit their views in 10 days so that they can present the case before the Supreme Court.
"It is, therefore, humbly requested that all states and Union Territories be made a party to the present proceedings and their respective stance be taken on record and in the alternative, allow the Union of India, to finish the consultative process with the states, obtains their views/apprehensions, compile the same and place it on record before this court, and only thereafter adjudicate on the present issue," the affidavit said.
Prime Minister Narendra Modi’s administration has contended that granting legal recognition to relationships is “essentially a function of the legislature,” not of the judiciary. It has also argued that marriage is an “exclusively heterogeneous institution” and any interference to it “would cause complete havoc” in India’s deeply religious society. Some people in favor of marriage equality have rejected the notion that societal norms in India do not evolve.
“The problem is this notion of fragility, which is just entirely self-created,” said Menaka Guruswamy, a senior lawyer representing multiple petitioners in the case, including two lesbian couples and a trans woman.
“Hindu society has enabled reform since independence,” she said, citing the changes to a series of laws in the 1950s that allowed Hindus, Sikhs, Jains and Buddhists to marry across religions and castes. Other laws allowed for divorce, the chance to adopt and equal rights for women to inherit property.
Now, Guruswamy said, same-sex couples require “a language” to present their relationships as equally authentic as those by their straight counterparts, in a society where young people grow up watching Bollywood films about “mismatched lovers” and “parental opposition.” Those stories, she said, should make it easier, not harder, for Indians to accept love in all its forms.
Almost five years ago, the Supreme Court ushered in a new era for LGBTQ rights in India. The ban on gay sex, a vestige of the country’s colonial past, was “indefensible,” the court said in its unanimous order. In that groundbreaking case, the court ruled that “sexual autonomy of an individual” was at the core of “individual liberty,” and thus had no place in the country’s legal system.
Those actions fueled hopes that the court would act as a socially liberal counterweight to the conservative ethos of Modi’s ruling Bharatiya Janata Party, and its ideological parent, the Rashtriya Swayamsevak Sangh. But many members of India’s lesbian, gay, bisexual and transgender community say they continue to lead marginalized lives.
The apex court had on November 25 last year sought the Centre's response to separate pleas moved by two gay couples seeking enforcement of their right to marry and a direction to the authorities concerned to register their marriages under the Special Marriage Act.