The Centre on Wednesday took a diversion from their declared view and told the Supreme Court that the government is agreeable to forming a committee which would examine if certain legal rights can be granted to couples from the LGBTQIA+ community without giving them the legal recognition of “marriage”.
“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,” Solicitor General Tushar Mehta said.
“Suppose the government says that nomination in PF is to a family member or anyone else, then you don't need to go into anything else,” Mehta added.
Mehta’s submission is significant because till now, the Centre flatly opposed any pleas seeking legal recognition of queer couples. Last week, Mehta—representing the Centre—expressed apprehension over granting marriage rights to couples from the LGBTQIA+ community which could be considered as “forbidden relationships”. Mehta, however, had accepted people’s right to co-habit.
The Solicitor General’s submission before the top court’s five-judge bench headed by Chief Justice of India DY Chandrachud came at the offset of the ongoing hearing on pleas seeking marriage equality.
Mehta said couples seeking marriage equality before the Supreme Court could submit their suggestions to him which the Government could address “so far as legally permissible”.
At the conclusion of the last hearing, the Supreme Court had asked the Centre to consider granting certain rights to the couples from the LGBTQIA+ community who co-habit together to ensure their social security and welfare.
Can consider rights, without legal recognition of marriage: Centre to SC
Supreme Court welcomed Solicitor General Tushar Mehta’s suggestion on the multi-disciplinary committee headed by a Cabinet Secretary to consider granting rights to queer couples. “Sometimes beginnings are small,” Justice S Ravindra Bhat—one of the five judges on the bench—observed.
“Sometimes a change of law will need recognition of a relationship and that we will have to see,” Mehta said.
Summing up the Centre’s submission from last week where Mehta accepted people of all sexual orientations have the right to co-habit, CJI Chandrachud said this move was “a step forward” for the Centre.
When Senior advocate Menaka Guruswamy—she represents a queer couple—expressed her apprehension over the plausibility of the Centre’s suggestions, Justice Sanjay Kishan Kaul said, “This is without prejudice to everyone's rights…If marriage right is given, there will be many changes required in the legislative and administrative domain...The Government is not reluctant to solve the problems arising of a gay companionship… Just not the label of marriage.”
“Just not gay... unfathomable combinations which are not possible to go into,” Mehta said.
Senior advocate Abhishek Manu Singhvi—arguing for marriage equality—also partly welcomed the suggestion. “We are happy to divide it (giving suggestions to the Centre) and this will be a low-hanging fruit where everyone will be happy... but the higher fruit will be your order,” Singhvi said.
To this, CJI Chandrachud pointed out that the conceptual domain requires legislative changes which is completely beyond the court’s jurisdiction. “So we have to see how we frame the conceptual doctrine. Some things can be done administratively, something can be changed by subordinate legislation, and the third is recognition for same-sex marriage. So we are saying we will decide this issue as a concept but the government taking one step forward will be to recognise the cohabitation of same-sex couples which will be a big step,” the CJI said.
Young people in small towns want to marry: Queer couples to SC
Advocates representing queer couples partly welcomed the suggestion but observed that it was not what the people of the community wanted and it would not solve the problem.
The consensus in the community is that people want to marry, senior advocate Saurabh Kirpal told the Supreme Court. Kirpal—who has openly declared his sexual orientation—asserted “the vast majority” of the community wants to be married.
“…It was not correct to say that some don’t want marriage…I want to be married... others want to be married. Why should we be happy as second class citizens from being third-class citizens...? Kirpal said.
Pointing out drawbacks to the Centre’s suggestion to consider rights that will ensure queer couples get social welfare and financial security, Guruswamy said “For something as pension, insurance etc, it only accrues in a marriage and not in the relationship of a caregiver…”.
“I speak a lot and especially in small towns. Mostly, young people in small towns want to be married. Please do not leave them like how we are...,” Guruswamy urged the bench.
“We understand we cannot get everything…,” Kirpal added. He added that a draft could be submitted which would outline what (rights) can be given, how recognition of marriage among LGBTQIA+ couples can be given and how the rights would flow.
After hearing arguments, CJI Chandrachud pointed out the limitations of a constitutional court going by what young people feel. “That is why we have to go with what the Constitution is and what is constitutional morality, the top judge said. “If we entertain this argument then the other side will throw at us what the country wants and we cannot go into that...this is a social institution which is evolving and the court as a facilitator can ensure that there is some development...,” the CJI said.
“If we don't recognize same-sex marriage, we do not want you to be with nothing in your hand,” the judge reasoned.
The top court is hearing pleas seeking constitutional legality of marriage equality. You can watch the proceedings live on the link below.
