The Indian Supreme Court’s hearing into petitions seeking to legalize same-sex marriage has taken an interesting turn.
Earlier, lawyers for the petitioners had argued in court that marriage was a union of two people, not just a man and woman, that concepts of marriage had changed over time, and that denying them the right to marry violated the constitution.
Day six of the discussion, that’s being “live-streamed in the public interest”, saw Solicitor General Tushar Mehta on Thursday speaking on behalf of the government, which has strongly opposed marriage equality for the LGBTQ+ community.
The government’s main contention from the start has been that only the parliament can discuss the socio-legal issue of marriage and the court has no right at all to hear the matter.
Disregarding the government’s objections, the judges had said they would not wade into religious personal laws but look at whether the Special Marriage Act of 1954 – which allows marriages between people of different castes and religious and weddings held abroad – could be tweaked to include LGBTQ+ people.
But as the hearings have continued, the five-judge bench has been conceding that tweaking one law may not really work, since it’s a complex web of 35 laws that govern issues of divorce, adoption, succession, maintenance, and other related issues – and that many of them do spill over into religious personal laws.
And during Thursday’s hearing, the top court appeared to agree with the government that granting legal sanction to same-sex marriage was parliament’s domain.
“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,” Chief Justice DY Chandrachud said.
The bench, however, went on to say that the court could “act as a facilitator” to push the government to find solutions to real problems faced by cohabiting same-sex couples.
They asked Mr. Mehta what the government intended to do to give same-sex couples a sense of security and ensure they had basic social rights like opening joint bank accounts or nominating a partner in insurance policies or school admission for their children. And how was the government going to ensure that they were not ostracised?
Mr Mehta said he would hold consultations with the government and report back to the court on 3 May. The government may consider tackling some of the issues that same-sex couples are facing without granting them legal recognition, he added.
