NEW DELHI: The Union government told the Supreme Court on Wednesday that recognising LGBTQIA+ community members’ marriage rights would destroy the legislative intent to permit only man-woman marriage under the Special Marriage Act and pointed out that the court neither had the wherewithal to gauge who among them were males or females nor the competence to create a regulatory framework for same-sex marriages.
Prefacing his arguments with an appeal to a bench of Chief Justice D Y Chandrachud and Justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha not to proceed further with the case as the subject was solely within Parliament’s domain, solicitor general Tushar Mehta said the SC could not superimpose its wisdom on the legislative intent behind the SM Act, which allowed only man-woman marriage.
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Mehta said nearly two years of parliamentary debates preceding enactment of the SM Act, 1954, categorically exhibited that the issue of “homosexuality” and “lesbianism” was prevalent in society even then, and that parliamentarians consciously provided a framework for inter-caste and inter-faith marriage between a man and a woman without them having to relinquish their religions.
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He said the Act specified who can marry — a man of 21 years and a woman of 18 years — dispelling the notion of autonomy of choice to marry anyone of any age; prohibited bigamy — that is specifying how many times one can marry; provided prohibitory degrees of relationship to specify whom not to marry; and regulated how divorce could be granted and under what circumstances.
The judges of the SC, however brilliant, cannot gauge the opinion of society and the general public to frame guidelines or laws on these aspects, the SG said.
“It is better to leave it to Parliament. A mere constitutional declaration recognising same-sex marriages will be of no use. Only Parliament can decide on this after a debate in civil society, the nation and finally in the legislature,” Mehta argued.
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Explaining the complexities of the disparate sexual orientations of LGBTQIA++ community members in the Supreme Court on Wednesday, SG Tushar Mehta said people were generally aware about LGBTQIA — lesbian, gay, bisexual, transgender, queer, intersex and asexual. “But numerous different groups of persons with myriad sexual orientations are clubbed under ‘++’. How is the SC going to deal with such complexities in sexual orientations and what their relationships could be along with multitudes of group-specific marital complications?” he asked.
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The Centre named 72 differently oriented groups and the SG read out a few: Agender — who does not identify self with or experience any gender; Aerogender or Evaisgender — this gender’s identity changes according to one’s surroundings; Affectugender — this is based on the person’s mood swings; Alexigender — a fluid gender identity between more than one gender although the individuals cannot name the genders they feel fluid in; Aliusgender — has a strong specific gender identity that is neither male nor female; Amaregender — having a gender identity that changes depending on the person one is emotionally attached to; Ambonec — identifies oneself as both man and woman and yet does not belong to either; Amicagender — who change gender identity depending on the friends they have.
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The SG said apart from the SM Act and other laws governing marriage, there were 160 provisions in various other legislations which dealt separately with men and women. “Will the Supreme Court become a super legislature to amend all these provisions with a constitutional declaration and by reading ‘person’ for ‘man and woman’ prescribed in these legislations? It is eminently for Parliament and state legislatures to work on these complex issues,” he added.
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“Will it be prudent or possible for the Supreme Court to create a new marriage institution for LGBTQIA+ community members without assessing its impact on personal laws and intra-faith heterosexual couples who get married under the SM Act?” Mehta asked. He said the government had enacted the Transgender Persons (Protection of Rights) Act, 2019, taking into account all possible sexual orientations of people and ensured that they were not discriminated in enjoying any fundamental right guaranteed to citizens. “But creating a new right to marriage for LGBTQIA+ community is a complex social, moral and legal issue, which Parliament alone can debate and decide,” the SG said. The arguments will continue on Thursday.
