NEW DELHI: The Centre informed the Supreme Court Wednesday it will set up a committee headed by the cabinet secretary to coordinate with various ministries and explore administrative solutions to the day-to-day problems faced by same-sex couples “as far as legally permissible”.
Responding to the court’s query about resolution of “genuine humane concerns of same-sex couples”, solicitor general Tushar Mehta said, “This will need more than one ministry. Therefore, a committee headed by no less than secretary will be constituted. The petitioners can give me the suggestions and problems they are facing. The committee will go into these. The government will try to address the issues administratively.”

While not opposing administrative solutions to their problems relating to residence, insurance, pension, provident fund etc, LGBTQIA+ petitioners’ counsel AM Singhvi, Menaka Guruswamy and Saurav Kirpal pressed on for marriage rights as desired by an overwhelming majority of same-sex couples and told the court that they would endeavour to convince the Supreme Court for a constitutional declaration at the conceptual level recognising same-sex marriage rights under the Special Marriage Act, 1954.
This did not go down well with the five-judge bench of CJI DY Chandrachud and Justices SK Kaul, SR Bhat, Hima Kohli and P S Narasimha. Justice Bhat said, “Don’t take the approach of all or none. Although the SG is saying administrative, there are substantive issues here – housing and insurance etc. These are substantial in terms of benefits you are seeking. That is actually the practical way out. The barriers you are facing, you can discuss. Although it is termed as administrative, this may result in changes in regulations, may be in law.”
Mehta said the government was ready to examine all administrative options, in whichever mode and manner, so that their problems could be resolved. Justice Bhat said, “Sometimes the beginnings are small. These beginnings may be substantial in the context of things.” Mehta said, “Right now, we are not aware of what we are dealing with. It might need a change of law, which will require examination.”
CJI Chandrachud said, “From the drift of the SG’s arguments, it appears that he also accepts that people have a right to cohabit, which is a social reality. Based upon that, he is saying the government wants to examine resolution of practical problems relating to having joint residence, bank account, insurance policies etc. From the petitioners’ perspective, this is a way forward. So, don’t have an all or none approach.”
Justice Kaul said, “Even if the court wants to give a status (to same-sex marriage), if not marriage rights, it would require many changes in law and involve legislative work. Government is reluctant to give you (same-sex couples) the status of marriage. But they are not reluctant to sort out the problems faced by you. Suggestion from the bench is that the nitty-gritty can be worked out later.”
When Singhvi argued that the SC alone was capable of giving a constitutional declaration on marriage rights of same-sex couples under the SM Act, the CJI said, “When we go into the conceptual domain, we cannot be oblivious to the fact that it requires legislative changes, which lie outside the court’s jurisdiction.
“Whatever doctrine the court formulates on a conceptual level has to be relevant to the ground reality. Administratively, they can change something, for which the government does not have to go to Parliament. We will decide the conceptual issue. But to the extent of which the government takes the first step forward, there would be a substantial benefit or substantial advancement in the recognition of cohabitational relationship of same-sex couples today which would be a substantial advancement from what we have today.”
Justice Bhat said, “If this (the administrative exercise) results in a gain (for same-sex couples), even if not as substantial as you visualise, that will become a building block for future. Do you want a ruling then? Is it advisable or prudent, if you are going to get this, to continue to go for that larger picture of conceptual declaration from SC? You have to take that call.”
The CJI said, “We understand the feelings but if we, as a constitutional court, go by what young people of LGBTQIA+ say, then we will be subjected to volumes of data about what young people of other spectrum feel.
Arguments will continue on Tuesday.