What route could the Supreme Court use to legalise same-sex marriage?

If the Supreme Court decides to extend marriage rights to those who identify as homosexual, transgender and queer, how exactly could it do so?

A five-judge bench is currently hearing 20 petitions asking for marriage laws to be made neutral for all sexualities and genders.

Experts say the court can take many routes to legalising same-sex marriage. But no matter how it proceeds, the implementation may pose knotty challenges, requiring Parliament to intervene.

The case so far

The 20 petitions pending before the Supreme Court have challenged the Hindu Marriage Act, the Special Marriage Act, the Foreign Marriage Act and the Citizenship Act.

In India, different religious communities have their own personal laws. Some of them are codified, such as the Hindu Marriage Act, which applies to marriages between Hindus.

There are also secular laws like the Special Marriage Act, which regulates marriage between interfaith couples; the Foreign Marriage Act, which regulates marriages for Indian citizens living outside India; and the Citizenship Act, which applies to marriages of Indians with foreign nationals.

On the first day of hearing, the bench said that it would like to move forward in an “incremental manner” and not venture into the domain of religion-based personal laws. Therefore, the Hindu Marriage Act would be outside the scope of the case.

As a result, the focus has now shifted to the Special Marriage Act.

Constitutional declaration

There are many ways in which the Special Marriage Act could pave the way for the legalisation of same-sex marriage.

The most extreme would be to strike down the Special Marriage Act as unconstitutional, holding it to be discriminatory since it only allows heterosexual marriages.

“However, this would be extremely problematic since this would take away the option of interfaith couples to get married,” said Aparna Chandra, an associate professor of constitutional law at the National Law School of India University, Bangalore.

The court can also merely clarify the constitutional rights involved in this case, which means that it can hold that all people, including queer persons, have a right to marry.

“It can say that there is a broader right to the inclusion of LGBTQ relationships in the law,” explained Akshat Agarwal, a doctoral candidate at Yale Law School working on the intersections of comparative family law and constitutional law. “Then you can use the constitutional argument to make inclusion possible everywhere else.”

Further, the petitioners have asked that certain provisions of the Special Marriage Act be struck down since they impede even heterosexual couples from getting married. This includes the 30-day notice period that couples must give before marrying, which often exposes them to disruption by disapproving families and increasingly, violence by vigilantes. The court can choose to additionally strike down such provisions.

Expansive interpretation of the law

Once it has held that all LBGTQ couples have a right to marry, the court can choose to interpret the Special Marriage Act in such a way that will allow this.

The petitioners have also made extensive arguments on how this law could be made gender-neutral to accommodate various types of relationships.

However, this approach also poses certain problems. “While this is the most practical approach and that is why the petitioners have also asked for it, I think the problem with that kind of an approach is that this law was enacted keeping heterosexual couples in mind,” said Agarwal.

The law presently is based on the gender dynamics in a heterosexual relationship. It prescribes different minimum ages of marriage for men and women, prohibited relationships for men and women (for instance, a relationship between a man and his mother), gender-specific grounds for divorce, alimony and maintenance. “Now, the question is how does that translate to a non-heterosexual couple?” asked Agarwal.

Further, it is not just the Special Marriage Act that the court will need to re-interpret. “There is no point just saying that they could get married,” said Sarasu Esther Thomas, professor of law at National Law School of India University, Bangalore, and an expert in family laws. “The point of a marriage is that it creates certain rights and unless you deal with those rights, then it is pointless to talk about a marriage.”

Thus, she believed that the court will also have to define how adoption, surrogacy, guardianship, inheritance, domestic violence, and other such areas will be dealt with. Even these laws are based on heterosexual couples and treat men and women differently.

The ghost of personal laws

Further, an expansive interpretation of the Special Marriage Act does not mean that the court can completely negate religion-based personal laws. This is because religious and secular family laws are “highly interconnected”. For instance, if two Hindus marry under the Special Marriage Act, their succession is still governed by the Hindu Succession Act.

Therefore, the court may have to say that only secular laws would apply to LGBTQ couples or interpret personal laws regulating various aspects of married life.

Another challenge for the court would be how succession would be governed for other members of the family. “So let us say that parents of a same-sex couple are married under Hindu law,” said Thomas. “For a Hindu man, a widow of a predeceased son is an heir. But what if the son is in a same-sex marriage?”

Therefore, given the complexity involved, the court may not be able to foresee and tackle all the challenges that could arise by a ruling in favour of same-sex marriage. “I think you can only make incremental changes,” said Thomas. “You cannot waive a magic wand and change all the laws.”

She believed it was important that the court made a beginning somewhere, even if it cannot deal with all possible issues. “Then slowly people may litigate [subsequent issues that will come up],” she said.

Laying down guidelines

However, if the court finds that an expanded reading of the law is not workable, it can also lay down guidelines.

It may say that all persons, including those who identify as homosexual, transgender and queer, have the right to marry. But since none of the existing laws allows for such marriages, ”to fill the legal vacuum it can lay down a set of guidelines that will apply till the government passes a law,” explained Chandra.

The Supreme Court, in 1997, had laid down extensive guidelines on how sexual harassment in the workplace needed to be addressed since there was no law regulating this crime. The guidelines laid down by the court were in force till 2013, when the Centre passed a law on this issue. The court might choose to do something similar in the present case.

Said Agarwal, “The Parliament might also then be compelled to act sooner if there are guidelines in place since there would be several day-to-day challenges arising out of this.”

He said that ultimately, legislative intervention would be needed. “However, I do not know what the horizon would be for that,” he added.

A timeline for the government

While the court cannot force the Centre to enact a law to allow for same-sex marriages, there are ways in which it could nudge the government to action.

The court can pass an order and delay its implementation, giving Parliament the time to make changes. “Usually in India it is not done, but in several other jurisdictions such as Germany, Canada etc. once the court finds the law is unconstitutional but it is not possible to strike it down because it has a whole range of other ramifications, it stays the operation of its declaration for a short duration and gives Parliament some time to enact a law,” said Chandra.

The Supreme Court could potentially borrow this practice from foreign jurisdictions, she said. It may delay the implementation of its order holding that the Special Marriage Act has to be interpreted in a gender-neutral manner. “If it were to do so, that would throw the ball back into the Parliament and the clock starts ticking for it,” said Chandra.

In South Africa, the court in 2005 held that the marriage law that only contemplated marriage between heterosexual couples was unconstitutional. It gave the Parliament one year to make appropriate legislative changes. If the law did not change during this time, the court held that the law should be interpreted in a gender-neutral way. Subsequently, in 2006, the South African Parliament passed a law recognising same-sex marriages.