On Wednesday, the Supreme Court bench headed by Chief Justice D Y Chandrachud resumed the hearing on acknowledging same-sex marriage in India. The five-judge Constitution bench headed by DY Chandrachud which included Justices SK Kaul, S Ravindra Bhat, PS Narasimha, and Hima Kohli said that there was no government data to show this was an elitist concept.
“Something which is innate cannot have a class bias. It may be more urban in its manifestations because more people in urban areas are coming out of the closet. There is no data coming out of the government that this is urban or something,” said CJI DY Chandrachud on April 19.
CJI DY Chandrachud: It may be more urban in its manifestations because more people in urban areas are coming out of the closet.#SupremeCourtofIndia #SameSexMarriage #SupremeCourt
— Live Law (@LiveLawIndia) April 19, 2023
Yesterday, the Centre had told the Supreme Court that same-sex marriage is an urban elitist concept which is far removed from social ethos of country. “Extending same sex marriage beyond heterosexual unions will create a new institution,” it said.
The Supreme Court first heard testimony from senior attorney Mukul Rohatgi, who was representing one of the petitioners, who said that the State should come forward and provide recognition to same-sex marriage. In the meantime, the Centre’s Solicitor General Tushar Mehta submitted a new petition at the beginning of the hearings asking that all states and Union Territories be included in the current legal dispute.
Advocate Mukul Rohatgi representing the petitioners seeking recognization of same sex marriages said that all consequences flowing from the registration of a marriage of a heterosexual couple must also flow to same-sex marriage. “We may be a miniscule minority but having the same rights, we’re entitled to the same declaration,” Rohatgi said in SC during the hearing.
The institution of marriage, according to Rohatgi, reflects the principles of love and faithfulness between two people. If this holy union is so beneficial to society, then it must also be beneficial to the LGBTQ+ community, he said.
He recalled the times when the Hindu Code Bill was introduced in the Parliament. “The Hindu Code wasn’t just Hindu Marriage Act, it had adoption, succession, so many things. It wasn’t accepted. Dr Ambedkar had to resign,” Rohatgi claimed seeking marriage equality. He also said that the LGBT+ community had no representation in the Parliament but they had right to put up their veiws in the court of law.
“The LGBT+ community as equal citizens under the constitution, are entitled to the same benefits. Hence, the benefits flowing from marriages should also be extended to the same-sex couples,” he reiterated.
After this, Senior Advocate AM Singhvi began his submission in the case. He stated that LGBT+ people needed protection from both the State as well as non-state actors and that marriage equality would remove the next brick of exclusion, reducing the stigma around the community.
Singhvi also pressed that the non heterosexuals deserve validation of their marriage to live freely in the society. “For those who seek marriage, they seek it for a community and social validation of a relationship. And I can’t agree more with Mr SG that just like heterosexuals deserve it, non heterosexuals also seek it and deserve it,” he said. He also said that there was no point in excluding validation of one set of couples.
To this, CJI DY Chandrachud pondered whether the situation might create psychological impact on the child. “Incidentally, even if a couple is in a gay relationship or a lesbian relationship, one of them can still adopt. So the argument that this will create a psychological impact on the child is belied by the fact that today as the law stands, it’s open,” he said adding that the child might lose the benefit of parenthood of both the parents.
CJI DY Chandrachud: It's just that the child loses the benefits of parenthood of both the parents.#SupremeCourtofIndia #SameSexMarriage #SupremeCourt
— Live Law (@LiveLawIndia) April 19, 2023
Advocate Singhvi then stated that it was an integral aspect for the ability to have and enjoy a family life. “Adoption, surrogacy, interstate succession, tax exemption, tax deductions- it simply requires marriage- compassionate government appointments…this is only illustrative, not exhaustive,” he was quoted as saying.
Referring to the ‘elitist concept’ on the second day of the hearing, the CJI said that something which is innate cannot have a class bias. “There is no data coming out of the government that this is urban or something,” he said. Further, several of the advocates representing the petitioners said that it would be lack of grace to brand them as ‘urban elitist’.
Singhvi brought up a different concern highlighted by the Centre, namely that same-sex marriage goes against cultural and conventional notions of marriage. According to him, the Special Marriage Act was passed with little regard for religion.
He pointed out that the Special Marriage Act is a non religious marriage related legislation. “This addresses the point of the respondent which is cultural understanding of marriage as a union. Cultural understanding of marriage was not the basis of SMA,” he said. He also added that the ‘Freedom of expression’ includes the freedom or the right to express one’s gender identity in all its manifestations.
“The right is being questioned on the ground that the rights heterosexuals have, non heterosexual couples do not have. The projection of the gender identity, which is a part of free speech, is inhibited by your stand which allows that right unfettered in heterosexual category,” Singhvi was quoted.
After hearing the petitions, the SC bench headed by Chief Justice DY Chandrachud clarified that the proceedings will only be confined to validating these marriages in accordance with the Special Marriage Act (SMA). It emphasised the need for a ‘incremental approach’ in the case’s judicial decision-making and remarked that this would show sage wisdom.
The submissions by Singhvi are slated to continue tomorrow. Earlier the day, the Chief Justice of India, DY Chandrachud (CJI), pondered on the current gender spectrum, asserting that there is no absolute concept of a man or a woman and the question of gender is not determined by one’s genitals.
“There is no absolute concept of a man or an absolute concept of a woman at all,” CJI Chandrachud noted. The observations came at a time when the Supreme Court is considering a set of petitions that are based on constitutional principles and seek to establish the recognition of same-sex marriage.
During the hearing yesterday, the Constitution bench indicated that the Special Marriages Act would be examined at a later time. In response, the Solicitor General pointed out that, at present, the idea of marriage was limited to a union between a biological male and a biological female. However, the Chief Justice of India countered by stating that the notion of a man was not an absolute one and was far more intricate than just the physical characteristics of one’s genitalia.
