The Constitution Bench judgment on Tuesday will show whether the Supreme Court will declare full legal status to same-sex marriage in India or merely restrain itself to the role of a “facilitator” to push the government for a few administrative tweaks to ease the day-to-day human concerns faced by cohabiting same-sex partners in areas like joint banking, insurance and admissions of children to schools, etc.
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The Union Government, which has opposed same-sex marriage, had proposed a committee headed by the Cabinet Secretary to consider administrative measures for addressing these “genuine, human concerns” faced by same sex couples in their daily lives.
The court had viewed the government’s proposal to form the committee as a “building block” for future changes.
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Midway through the hearing in April-May, the five-judge Bench headed by Chief Justice of India DY Chandrachud had even advised the petitioners against opting for an “all-or-broke approach”. It suggested that “incremental changes in issues of societal ramifications are a better course to take”.
The court had even delved on semantics, tossing around labels like “contract” and “partnership” instead of “marriage” to describe same sex unions. The court also made it clear that it did not want to step into the thorny issue of how a recognition of same sex marriage would affect personal laws.
The petitioners want the Special Marriage Act, 1954 to apply to the LGBTQIA+ community. Same-sex partners argued that only the institution of marriage would provide their relationship a legal status.
But the court had said ‘marriage’ was not the only way to recognise a relationship. Chief Justice Chandrachud had referred to how “long cohabitation” also raised the “presumption of marriage”.
“Homosexual relationships are not a one-off… We are saying that cohabitory relationship should be recognised in terms of creating security, social welfare and address day-to-day concerns faced by same sex couples in order to ensure that their relationship cease to be ostracised in society,” the Chief Justice had observed in court.
