Same-sex an innate feature, can't call it elitist or urban: SC
Around 50 petitioners moved the SC seeking legalisation of same-sex marriage, arguing that denying it was unconstitutional and violative of fundamental rights
New Delhi Disapproving of the Union government’s stand that the demand for legal validation of same-sex marriage is an “urban elitist concept”, the Supreme Court on Wednesday said that an innate characteristic of a person cannot be called “elitist”, adding the government has failed in adducing any data to buttress its statement.
“When you say that this is an innate characteristic, it’s also an argument in response to the contention that this is very elitist or urban or that it has a certain class bias. Something which is innate cannot have a class bias,” said a Constitution bench, led by Chief Justice of India Dhananjaya Y Chandrachud.
It added: “It may be more urban in its manifestations because more people in urban areas are coming out of the closet. But there is no data coming from the government that this is urban or something.”
The bench, which also comprised justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha, was apparently responding to the Centre’s application filed on Sunday stating that the plea before the court reflected “urban elitist views for the purpose of social acceptance”. Through this application, the Centre urged the court not to interfere with the legislative policy that consciously outlaws same-sex marriages while seeking dismissal of all the petitions on grounds of maintainability.
The proceedings began with the Centre telling the top court that it had written to all states, asking them to submit their views on the legalisation of same sex marriages within 10 days. The Union government urged the court to either make all states and Union territories parties to the case or halt the proceedings till the consultation process is over. But the court was unfazed and continued to hear a clutch of petitions seeking legal validation of same-sex marriages.
The top court also did not find favour with the views of the Centre that it is for the legislature to examine a bundle of factors, including the impact on the psychology of a child being raised by a same-sex couple, for the purpose of taking a call on legal recognition of such unions.
The bench said that the foundation of such an argument is “belied” by the fact that one of the partners in a homosexual relationship can still adopt under the law. “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,” it observed.
The five-judge bench had on Tuesday commenced its hearing of the case after turning down the Union government’s objections against the judicial determination of the issue. While the Centre maintained that it is exclusively for the legislature to grant legal recognition to a social institution and that the court must first seek the views of all states, the court went ahead with the matter saying it will adjudge the issue in a “restricted arena” of granting validation to same-sex marriages by reading down or interpreting relevant provisions of the Special Mariage Act (SMA).
On Wednesday, the government made yet another attempt to persuade the bench that the matter should not be heard without calling upon the views of states and Union territories. Solicitor general Tushar Mehta, representing the Centre, told the bench that the government has filed a fresh affidavit on Wednesday morning, informing the court about the initiation of a consultative process with the states.
Hours after the Constitution bench began hearing the case, the Union law ministry on Tuesday wrote a letter to the chief secretaries of the states, asking them to submit their views on the validation of same-sex marriage within 10 days “so that the standpoint of the Union and state governments are represented properly without delay.”
In the letter to the states, a copy of which HT has seen, the ministry said that “marriage” falls under Entry 5 in the Concurrent List of the Constitution, enabling both the Union government and states to regulate the related issues. “Moreover, any decision on this matter requires an assessment of the ramifications on existing social customs, practices, values, norms, mores, state Rules and such like that may be prevalent in different sections of the society,” it said. If the court decides not to issue notices to the state governments, the letter said, it will be expedient that states communicate their views for appropriate submissions by the Union of India before the court.
The Centre’s affidavit on Wednesday brought on record this development. After S-G apprised the bench of the new development, the CJI responded: “That’s excellent. So, you have informed all the states. Now, the states are also aware and anybody who has to say anything can come to us.”
Resuming his arguments on behalf of a same-sex couple, senior counsel Mukul Rohatgi implored the bench to substitute terms like “man”, “woman”, “husband” and “wife” under the SMA with gender-neutral terms such as “person” and “spouse” could solve the problem to a large extent.
Assisted by a team of advocates from law firm Karanjawala & Co, Rohatgi emphasised that the petitioners do not want a mere declaration on the validity of their union but an array of secular rights related to banking, insurance, pension, adoption and so on. “All kinds of secular legal rights and benefits flowing from a marriage between a heterosexual couple should flow to us as well. That’s what we call equality, dignity,” he added.
At this point, the bench said that if the court were to accept the petitioners’ contentions and direct registration of marriage, legal consequences will certainly follow. “At the same time, one fine day, everything cannot change. That must be kept in mind. It has to be incremental...If we say that a marriage can be registered under SMA, that itself is a right. If someone does not accept our order, then it’s a violation of the orders of this court,” added the bench.
It also told Rohatgi that using gender-neutral terms under the SMA may pose certain issuing in defining the age of the partners since the law requires a man to be 21 and a woman to be 18 for entering into a valid marital union. Rohatgi replied that lawyers appearing for other petitioners will be addressing the bench on this issue.
Senior counsel Abhishek Manu Singhvi, representing another petitioner, found fault with the Centre’s arguments that a marriage between a heterosexual couple is socially and culturally ingrained. “The Union forgets that SMA was created as an alternative to the same socially, culturally ingrained form of marriages or the unpopular marriages. So, the government of India is hoist on its own placard when it says it will look at only one type of marriage when SMA has existed for so long,” said Singhvi.
The senior counsel said that legal validation of same-sex marriage is a source of dignity, fulfilment and self-respect as a core member of society and that the court must intervene to assure these rights to the LGBTQI+ community.
Around 50 petitioners have approached the top court asking for legalisation of same-sex marriage, arguing that denying them the right to wed was unconstitutional and violative of their fundamental rights. If they succeed, India will become only the third country in Asia to allow same-sex unions, a mere five years after the court decriminalised homosexuality.