New Delhi: The Supreme Court Wednesday sought to counter the central government’s claim that the demand for legal recognition of same-sex marriages is merely the voicing of “urban elitist views,” while observing that the government’s assertion is not backed by any data.
On Sunday night, the government had filed its second affidavit in response to a batch of petitions seeking legal recognition of same-sex marriages. It maintained that the petitions before the court “reflect urban elitist views for the purpose of social acceptance.”
However, in an apparent rejection of the government’s claim, Chief Justice of India D.Y. Chandrachud Wednesday orally observed that “there is no data coming out of the government that this (same-sex marriage) is urban [concept] or something.”
He also added that same-sex relationships may be “more urban in its manifestations because more people in urban areas are coming out of the closet.”
The CJI made the remarks when senior advocate Abhishek Manu Singhvi, appearing for one of the petitioners, submitted that same-sex couples were facing discrimination on only “sexual orientation.”
On Singhvi’s argument, the CJI observed: “So you are saying the state cannot discriminate against an individual on the basis of a characteristic over which a person has no control.”
“And when you say that this is an innate characteristic, it is also an argument in response to the contention (of the central government) that this is very elitist or urban or it has a certain class bias. Something which is innate cannot have a class bias.”
Declining the central government’s preliminary objection over the maintainability of the pleas, a five-judge Constitution Bench headed by CJI Chandrachud began hearing the petitions to legalise same-sex marriages Tuesday. It also comprises justices Sanjay Kishan Kaul, S. Ravindra Bhat, P.S. Narasimha and Hima Kohli.
On Tuesday, CJI Chandrachud had said that the notions of man and woman are not “an absolute based on genitals,” even as the bench asserted that it would “steer clear of personal laws”.
The government had asked the court not to proceed with the matter arguing that Parliament was the appropriate forum to hold a debate on it.
Notably, in March, the government had filed the first affidavit before the apex court claiming that “heterosexual relationships are a norm.”
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‘States aware that hearing is on’
On Tuesday night, the central government filed its third affidavit in the matter to reiterate its stand that the court must also hear the states, as “marriage” was a subject listed under the concurrent list of the Constitution and that states have the freedom to formulate their own rules regarding marriage registration.
On Tuesday, Solicitor General Tushar Mehta had made the plea before the bench, however, the same was not taken note of.
In the five-page fresh affidavit filed by the joint secretary and legislative counsel of the Union Ministry of Law and Justice, K.R. Saji Kumar, the central government also said that even though the court is intending to limit the hearing Special Marriage Act (SMA), it still entails judicial creation of a social institution called “marriage” of a different kind than contemplated under the existing law.
Also, any decision by the court without making states a party, without seeking their opinion, would render the present “adversarial exercise” incomplete and truncated, the affidavit said, while repeating its “constitutional, jurisprudential and logically fair request” to make states a party in the proceedings.
Since the court has for now not issued notices to the states, the central government said, it has on its own started the exercise of consultation.
Before the bench commenced the hearing Wednesday, it took note of the central government’s reaching out to the states and appreciated it. “It is good that you have written to them. Now they know we are hearing the matter,” the CJI told Mehta.
However, the court declined to accept the solicitor’s request to proceed once the central government concludes its consultative process, obtains the states’ views and places it on record before the court.
‘Same-sex couples face ostracism’
Senior advocate K.V. Vishwanathan, who represents a transgender petitioner in the case, also objected to the government’s view and said his client was disowned by the family and was left to beg on the streets.
“Today she is director in KPMG (a global consultancy firm) all by herself. For her to be branded an urban elitist shows absolute lack of grace,” he said. She is also a government-nominated member of the Transgender Council under the new Transgender Act, he told the bench.
Senior advocate Mukul Rohatgi who opened the arguments on behalf of the petitioners concluded his submissions Wednesday. He raised an emotional appeal before the court regarding how these LGBTQ community members had resolved issues with their parents and had come out from the closet. Yet, they faced ostracism from society, affecting their parents as well.
He rebutted the central government’s view on same-sex marriage being “an elitist concept” and said the right to privacy would include sexual act, companionship, including marriage, family and walking in public spaces.
“The right to make fundamental choices will include marriage as well,” he contended.
Rohatgi spoke of how the ostracism of same-sex couples was the result of Victorian morality imposed on Indians.
“Go back thousands of years and our morality was very different. This (same-sex relationships) were never stigmatised. We had changes following the Lodhi dynasty, then the Mughal dynasty, and then the British. What India continues to follow is a British code and moralities. The society has travelled through twisting sands of time,” he told the bench.
He asked the bench to “declare” that same-sex couples be married under the Special Marriage Act (SMA) and that thesState recognise and register such unions.
Singhvi said that SMA is “a non-religious” marriage-related piece of legislation and not based on “cultural understanding” of marriage as a union, as submitted by the central government. He addressed the court over the need to interpret SMA as “a constitutionally compliant law”.
(Edited by Anumeha Saxena)
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