SC Pushes Limits Of Logic In Its Rush To Legalise Same-Sex Marriages

The preliminary hearings on the legalisation of same-sex marriages shows how the bench is tying itself into legal knots in its eagerness to prove its “liberal” and “progressive” credentials.

That, in the process, it will mess up several extant laws based on male and female identities did not seem to matter to the five-judge bench headed by Chief Justice D Y Chandrachud, which includes Justices Sanjay K Kaul, S R Bhat, Hima Kohli and P S Narasimha.

The original petition was filed by two people of the same sex who wanted to be given the right to be legally married. As more petitioners joined the case, the issue has been extended to mean that any person, whatever be the person’s chosen gender identity, should have the same rights as partners of opposite sexes who have a right to get “married”.

The Chief Justice made some ludicrous remarks, which may be technically correct, but make no sense in terms of the law as it now stands. He said: “There is no absolute concept of a man or an absolute concept of a woman at all. It is not a question of what your genitals are.”

In theory, this statement is fine, for nature allows for gender fluidity. But any human law, if it is to be effective, must have clear definitions.

Here, tradition and hundreds of years of social evolution have resulted in notions about men and women that flow from not only genitalia, but other body parts, including breasts, uterus, and the overall ability to conceive. 

If the word marriage has a clear definition, does it make sense for the Chief Justice of India (CJI) and his bench to change the meaning of the term, when he has shown no such courage to overturn faith-based laws on marriage?

Instead, the bench has decided to focus on the Special Marriages Act of 1954, which too defines marriage as a union between man and woman, to replace the words man and woman with “person”.

But the objects and reasons given for enacting the Special Marriage Act says very clearly that it is intended to replace the British era Special Marriages Act of 1872, and is specifically intended to enable people professing different faiths to marry.

So, a law with a limited objective, is now being made into something it was never intended to be. The Solicitor General, Tushar Mehta, surely had a point when he said that the courts should not be deciding this matter.

If the bench tinkers with the Special Marriage Act, and yet avoids making any consequent changes to the personal laws of Hindus, Muslims, Sikhs, Parsis and Christians, among others, it is essentially proving that it does not have the cojones to take on those forces. This is cowardice, not progressiveness.

The bench’s position is illogical for several reasons.

First, if the purpose is to legalise same-sex unions, there is actually no problem here about gender identity. A gay, lesbian or bisexual person is not uncertain about her or his gender identity. The issue is their gender preferences for partnership, including sexual partnership. 

Second, the court is not at liberty to change the definition of “marriage”, when it is unwilling to go all the way. For example, under Indian law, the word rape has clear and hard gender overtones.

In our law, rape can only be perpetrated by a man. In fact, when the United Progressive Alliance government, in the wake of the Nirbhaya rape and murder, wanted to replace the term rape with “sexual assault” to make it gender neutral, feminists were up in arms.

So, what the bench is trying to do is not what feminists have so far seemed to want. And no one can be in any doubt about the gender identity of “feminists”.

Third, if the word man or woman can be replaced with the word “person”, the logical move would be to stop using the singular word too. Why not “persons” in the plural? Why not allow polygamy or polyandry, as long as there is free and willing consent from all partners?

Why should the state restrict such unions to only two individuals? Why not three or four or more individuals signing up for reasons that they find compelling for their own reasons?

If the court can “decriminalise” adultery (which it did in 2018), why not legalise all such platonic or poly-amorous unions?

Fourth, every law, from marriage to dowry to domestic violence to rape, not to speak of laws giving special protections or benefits to women, will need substantial change. Every public space, from toilets to bus seats, will need changes if gender is considered “fluid” for purposes of the law.

For example, women are given certain financial benefits, but will they stop receiving it if they now change their gender identity? Will the laws to give financial incentives for girl children need changes if the child later changes its gender identity?

The real question is actually a simple one, and does not need a legal tweak in the Special Marriages Act or the definition of the word marriage — which has a clearly accepted meaning. The question is: how do we protect the rights of any individual to live with a partner of either gender, and yet have the same legal rights and obligations that partners do in man-woman marriages?

The answer may lie not in the term marriage, but in legalising “civil unions”, as is the case in France. In French civil unions, men and women, or two women, or two men, or persons of any gender identity, can agree to live together, make reciprocal promises to support one another, and pay each other’s debts as long as the debts are incurred in connection with everyday living.

The union is dissolved if both partners agree, or if one dies, or one chooses to actually get “married”.

The Supreme Court should use common sense and not try to overturn centuries of meaning implied in the word “marriage”. It can and must protect the rights of those whose partnerships do not amount to marriage, but this needs a new law.

It can, at best, decide that persons choosing to live together, as in a regular marriage, shall have the same right to register them and incur both legal rights and obligations in the process.

When the courts have already given the rights to partners in live-in relationships, it should take the next logical step of allowing civil unions.

It should stop virtue signalling, and focus on what is the right thing to do in the case of same-sex unions or gender fluidity. Existing laws on marriage and those based on gender certainties need no change.