India dispatch: Supreme Court referral of same-sex marriage pleas to Constitution bench puts it on collision course with Union government Dispatches
© JURIST (Neelabh Bist)
India dispatch: Supreme Court referral of same-sex marriage pleas to Constitution bench puts it on collision course with Union government

Indian law students are reporting for JURIST on law-related developments in and affecting India. This dispatch is from Nakul Rai Khurana, a law student at Jindal Global Law School.

Last Monday India’s Supreme Court announced that a five-judge bench will preside over a batch of matters concerning the constitutionality of same-sex marriages in the country, with the first hearing scheduled for April 13. The Chief Justice of India (CJI) Justice D.Y. Chandrachud has noted the seminal importance of the issue and highlighted the conflict between constitutional rights and existing statutory enactments. The exercise of Article 145 (3) of the Indian Constitution was made, which calls for a minimum of five judges to preside over a substantial matter which involves the interpretation of the Constitution.

This development comes after the Supreme Court of India invoked its constitutional powers by transferring to itself a batch of pleas regarding the legal recognition of same-sex marriage on January 6, 2023. It reflects the strengthening of judicial activism in India, which has fuelled progress in promoting social change. It is worth noting that CJI D.Y. Chandrachud was one of the presiding judges in the five-judge bench that unanimously invalidated a part of Section 377 of the Indian Penal Code, 1860  (‘IPC’) which had criminalised homosexuality in India, in the landmark case of Navtej Singh Johar & Others v. Union of India in 2018.

In the batch of cases on same-sex marriages before the Supreme Court, the Union government responded to the pleas on March 12, 2023, by submitting an affidavit to the Court emphasizing that such an issue was within the purview of the Indian Parliament’s legislative authority. The government expressed concerns that judicial intervention could disrupt the harmonious nature of Indian cultural values and upset the delicate balance between the judiciary and the executive. The definition of marriage, which is both legally and socially sanctioned, according to the Union government, is a bond between only a biological man and a biological woman, especially under the Hindu Marriage Act, 1955.

In India, under Hindu personal laws, marriage is considered a sacrament, whereas Muslim personal laws regard it as a contractual union. The private realm continues to be a controversial affair, for traditional thought believes marriage to be a private affair. The Union government in its submissions has vehemently opposed same-sex marriage and opined that the concept of marriage under Hindu law presupposes a union between individuals of the opposite sex, which is deeply embedded in the Indian social, legal, and cultural values. The government argued that judicial interpretation and intervention could jeopardize this cherished cultural value.

The Solicitor General of India, Tushar Mehta, representing the Union government, made it clear that matters involving the legal recognition of any relationship are primarily a function of the legislature and must be subject to parliamentary debate. The affidavit maintained that it is “impermissible” for the apex court to dismantle the entire legislative policy that governs marriages in India,  and such a development would “wreak havoc” on the fabric of society constituting the family unit.

Former Additional Solicitor General of India, Indira Jaising, supporting same-sex marriages, opined on how the understanding of marriage should be independent of one’s sexuality or gender and “irrelevant for all legal purposes”. The centre’s affidavit attracted strong opposition especially from the members of the LGBTQIA+ community as it tries to disregard the hard-won battle against Section 377 IPC. While consensual sex and live-in relationships between two adults are decriminalised for non-heterosexuals, the centre maintains that the same is not comparable to the family unit that is envisaged in core traditional values.

The Supreme Court has received 15 pleas so far, most of them by non-heterosexual couples seeking constitutional and legal recognition of same-sex marriage. Although recent legal developments have favoured constitutional freedoms and fundamental rights, it will be a daunting task for the Supreme Court to balance the delicate relationship between the judiciary and the executive while interpreting the matter considering its controversial threshold while also keeping in mind the stakeholders involved.

What will also be interesting to note is how the apex court interprets the rights of a section of the society while dealing with personal laws that have long existed in India and are deeply embedded in societal norms. So far, Taiwan remains the only Asian jurisdiction that has legalized same-sex marriage, and the question remains whether India will follow in its footsteps. Optimism aside, the Supreme Court’s decision will ultimately depend on the legal and constitutional arguments presented before it and will shape the definitive future of Indian society.