A five-judge Consitution bench of the Supreme Court led by Chief Justice DY Chandrachud on Tuesday began hearing arguments on a batch of pleas seeking legal validation of same-sex marriages, an issue that has wide societal ramifications and has sharply divided public opinion. The bench also comprises Justices SK Kaul, SR Bhat, Hima Kohli and PS Narasimha.
The apex court made it clear that it will not go into the personal laws governing marriages while deciding the pleas seeking legal validation for same-sex marriages and asked the lawyers to advance arguments on the Special Marriage Act.
“It is not the question of what your genitals are. It is far more complex, that’s the point. So, even when the Special Marriage Act says man and woman, the very notion of a man and a woman is not an absolute based on genitals,” said the bench.
Solicitor General Tushar Mehta, appearing for the Centre, referred to the laws on transgenders and said there are several rights such as the right to choose partners, privacy right, right to choose sexual orientation, and any discrimination is criminally prosecutable.
“However, the conferment of socio-legal status of marriage cannot be done through judicial decisions. It cannot even be done by the legislature. The acceptance has to come from within the society,” the top government law officer said.
Arguing for the petitioners, senior Advocate Mukul Rohatgi said that those in same-sex relationships should also have equal rights similar to their heterosexual people.
Urging for the question of law to be allowed to remain open for adjudication, senior advocate Menaka Guruswamy for the petitioners said marriage is “not only a question of dignity but a bouquet of rights that LGBTQ people are being denied post Johar, like life insurance or medical insurance.”
“When we look at law in India, most rights flow from this notion of blood relationships, i.e., either being born into a family or being married. That is the problem,” she said.
Terming it a “very seminal issue”, the Supreme Court on March 13 referred the pleas to a five-judge Constitution bench for adjudication. On Monday, the top court agreed to hear the Centre’s plea questioning the maintainability of the petitions seeking legal validation of same-sex marriage.
On Monday, the Centre submitted its second affidavit in the apex court and reiterated its opposition to petitions seeking legal recognition of same-sex marriage in India, stating that those seeking marriage equality in India merely represent “urban elitist views for the purpose of social acceptance”.
Questioning the maintainability of the petitions, the Centre has said legal validation for same-sex marriages will cause complete havoc with the delicate balance of personal laws and accepted societal values.