Gender more complex than genitals, India’s top judge says

By Joydeep Sen Gupta, Asia Editor

A five-member constitutional bench of India’s Supreme Court started hearing arguments on several petitions that sought legal validation of same-sex marriages on Tuesday.

The hearing comes in the wake of the Supreme Court’s landmark ruling in September, 2018, which had decriminalized gay sex. That decision reversed a British colonial-era law that was initially introduced in 1861 and later enshrined in Article 377 of the Indian Constitution in 1950. The bench, headed by Chief Justice of India Dhananjaya Yeshwant Chandrachud, heard the arguments via livestream.

The hearing began on a stormy note Tuesday, as the government, represented by Solicitor-General Tushar Mehta, stated its preliminary objections to the plea. Mehta contended that “Parliament is the only constitutionally permissible forum to decide on the creation of a new social relationship,” and thus participants in the proceedings don’t represent the views of the nation. He argued that this means the court is in no position to hear the case in the first place.

These objections were overruled as the chief justice stated he considered the matter of “seminal importance” and said he would “not allow anyone to dictate how proceedings will happen in this court.” 

The judges limited the scope of the petitioners’ submissions to recognition of same-sex marriage under the Special Marriage Act of 1954, instead of religious-based personal laws, in the absence of a uniform civil code (UCC). The ruling Bharatiya Janata Party (BJP) has been pushing for such a UCC since 1998.

“For the time being, we can not step into personal laws at all and are restricted to the Special Marriage Act by giving it a gender-neutral interpetation and evolve a civil union concept. From Navtej [the 2018 case which ended in the decriminalization of same-sex relationships] till now, there has been acceptance of same-sex relationships, which is also universal. And in this evolving consensus, the court is playing a dialogical role and we know about our limitations,” the chief justice said.

“There is no absolute concept of a man or an absolute concept of a woman at all,” Chandrachud remarked after Solicitor General Mehta submitted that the Special Marriage Act’s intent is to cover the relationship between a biological male and biological female. “It’s not the question of what your genitals are. It’s far more complex, that’s the point. So even when the Special Marriage Act says man and woman, the very notion of a man and a woman is not an absolute based on genitals,” Chandrachud said. 

Senior Advocate Mukul Rohatgi, representing the petitioners, sought their legal recognition as spouses. “We cherish and desire the same institution of marriage as it is respected in the society. Now under the Domestic Violence Act, even live-in relationships are allowed,” he said. The senior counsel also cited the social stigma that LGBTQ individuals face in all walks of life. “If you do not have full enjoyment of life, you will not have dignity. We are facing the disdain of the majority… what about the stigma in place?” he asked. He also argued that transgender individuals were already recognized in India under the 2019 Transgender Persons Act.

Advocate Menaka Guruswamy, also arguing on behalf the petitioners, pointed out the individual rights inaccessible to same-sex couples. “Marriage is a question of rights. I am not able to notify my partner for life insurance. I cannot buy insurance from the Supreme Court Bar Association for my family.”

The Supreme Court has urged both the defendant and the petitioners to finish their arguments by Thursday.

Though there is no official data available about India’s LGBTQ population, the government estimates the figure at around 2.5 million. However, activists claim a much higher number of over 135 million, or about 10% of the country’s population.

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