On May 3, the Solicitor General of India Tushar Mehta informed the Supreme Court’s Constitution Bench that the Government of India is agreeable to constitute a committee for examining whether certain legal rights can be granted to same-sex couples without a legal recognition of ‘marriage’ to their relationship.
The Constitution Bench asked the Solicitor General to take instructions from the Government of India on whether certain rights can be granted to same-sex couples to ensure social security and welfare, allowing them to open joint bank accounts, nominate partners in life insurance policies and provident funds, without a legal recognition of ‘marriage.’
The Solicitor General has informed the Constitution Bench about the instructions taken from the Government of India at the commencement of today’s hearing. He said, “The government is positive. What we have decided is that this would need coordination between more than one ministry. So therefore a committee headed by no less than the cabinet secretary will be constituted.”
Furthermore, Solicitor General submitted that the petitioners can give suggestions and convey their problems so that the Government of India can address them “as far as legally permissible.” He said, “Suppose the government says that nomination in PF is family member or anyone else, then you don’t need to go into anything else.”
The Chief Justice of India DY Chandrachud suggested that the Attorney General of India R Venkatramani, the Solicitor General and other advocates appearing in the case can have a meeting over the weekend for a discussion. The CJI further said that this exercise would not prejudice the Government of India’s rejoinder arguments which will be made in the case.
“From the drift of the submissions made by SG last time, it appears that the SG also accepts that people do have a right to cohabit and that right is an accepted social reality. Based on that, there may be certain incidents of that cohabitation- bank accounts, insurance policies – these are practical issues which can be resolved by the government”, CJI observed.
However, the petitioner’s counsel, Senior Advocate Dr Abhishek Manu Singhvi submitted that there are substantial constitutional issues involved in this case and that the Government of India’s “administrative tweaking” would not resolve the issues totally.
Justice Sanjay Kishan Kaul said, “They are reluctant to give status of marriage but they’re not reluctant to sort out the problems arising from gay companionship without elevating it to marriage.” Furthermore, he added, “Therefore, what is the suggestion from the bench is that the nitti-gritties of what may be done, some endeavour or step is taken in that direction. So let us accept without pre-notions.”
The CJI has clarified that the Supreme Court will decide the case concerning rights of same-sex couples to marry regardless of the Government of India’s concessions. He said, “Your fundamental point is that there is a right to marry, that it can be sourced in Special Marriage Act. Therefore, of course we’ll have to decide it but to the extent which the government takes the first step forward, there will be a substantive benefit.”
Meanwhile, Justice S Ravindra Bhat weighed in and said that the Government of India’s exercise to provide certain legal rights to same-sex couples can be seen as a ‘building block’ for claiming further rights. He said, “Don’t see this as the end of the battle. Your movement for equal recognition will always remain. Even if you don’t accept this or partly accept this, it won’t be the end of what you do,” to the petitioner’s counsel. “If you get something out of this, it is a big big positive”, he added.
Legal Recognition is Legislature’s Dominion
On April 27, the Supreme Court said that granting legal recognition to same-sex marriages falls within the legislature’s dominion. The Court said that the hearing’s objective in hearing the same-sex marriage case is to provide social and other benefits, including legal rights, to same-sex couples without the label of marriage.
It is reported that at least three judges on the Constitution bench hearing the case concurred with this view while hearing the petitions on legal recognition of same-sex marriages.
The Chief Justice of India (CJI) DY Chandrachud said that the Constitution bench would not go into marriage, however, the bench was inclined on the right of two persons of the same sex to co-habit and give legal recognition to the same.
Furthermore, the CJI said, “Once you recognise there is a right to cohabit.. and it may be symptomatic of a sustained relationship.. and once you say that right to cohabit a fundamental right, then it is the obligation of the state that all social impact of the cohabitation has a legal recognition.. we are not going into marriage at all.”
The CJI’s statement was in response to Solicitor General Tushar Mehta’s submission that same-sex couples have the fundamental right to cohabit, however, the same cannot be given the label of marriage. “Right to love, right to cohabit, right to choose a partner, right to have a sexual orientation is a fundamental right but there is no fundamental right to seek recognition of that relationship as a marriage or in any other name,” the SG said.
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