Same-Sex Marriage Case: Why Day 6 Of Hearing Was Arguably The Most Important

The Centre, through the Solicitor General, submitted in the Supreme Court today, 3 May, that it will constitute a committee headed by the Cabinet Secretary to address the concerns of by the LGBTQ community.

This submission came on the same day that the CJI remarked: "The conceptual domain [of granting legal recognition to same-sex marriages] requires legislative changes and it is completely beyond our domain".

Today's events can be said to be positive developments given that in the early days of the hearing there were apprehensions that the Supreme Court would unilaterally change the definition of 'marriage', leading to large-scale disruption and legal and administrative tangles, and social upheaval.

Today was the seventh day of the hearing.

However, what can be regarded as the turning point came on the 27th of April, the sixth day of hearing in the same-sex marriage case.

On this day, the Supreme Court bench as well as the Solicitor General acknowledged that a same-sex couple can get married, have a marriage ceremony and tie knots, just that there would be no legal recognition for such a marriage. As there is no law prohibiting such marriage, there is nothing wrong in a same-sex marriage taking place.

The Solicitor General also agreed that a same-sex couple have a right to cohabit together.

However, to this the CJI remarked that flowing from this right of cohabitation, there is a corresponding duty on the state to legally recognise this cohabitation.

As per the court, there are a bundle of rights, like insurance policy for the couple, rights of inheritance, right of the partner to be nominated for receiving gratuity and a plethora of other civil rights which are dependent legal recognition.

At this point, the bench said that they are not per se looking for a marriage recognition right now, but anything which legally recognises that the couple is cohabiting. So that they can avail of the civil rights which a couple can avail under different laws. 

To this, the SG had categorically responded that these were human concerns faced by the LGBTQ couples which the SG and the Government shares.

The bench and all the judges had unanimously stated that there can be some recognition of cohabiting, not necessarily marriage.

To this end, the court was willing to know the stance of the government on how such social issues faced by the LGBTQ couples can be alleviated. The SG has assured that these social issues are shared by the government.

The CJI also categorically said that this should not be in an adversarial form and the court is more than willing to know how can the government go about in alleviating the concerns faced by the LGBTQ people.

This was quite a landmark statement, as it showed that the CJI was willing to exercise judicial restraint and not enter into an area where the parliament alone is competent to legislate. 

Way forward

The recognition of the right to cohabit can be the most fruitful remedy to the issue at hand.

On one extreme is changing the definition of man and woman and allowing anyone to marry each other irrespective of the gender. On the other hand, is denying any relief to a same-sex couple.

An amicable solution can be legislation which gives statutory recognition to the ‘cohabitation’ between a same-sex couple. All the other civil rights which a same-sex couple would have, could be availed through this new legislation.

A same-sex couple would have to necessarily be governed under this new legislation, and they cannot claim that they have a right to marry under any of the personal laws.

Other practicalities can also find mention in such a special legislation.