THE SUPREME Court on Tuesday heard a batch of petitions seeking legal recognition to same-sex marriage in India. The five-judge bench hearing the matter said it will steer clear of the area of personal laws and will only examine if the LGBTQ community should be granted the right under The Special Marriage Act (SMA), 1954.
The apex court also argued that the concept of a man and a woman, as referred to in the Special Marriage Act, is not ‘an absolute based on genitals’.
A five-judge Constitution bench headed by Chief Justice Of India DY Chandrachud said that it is not the question of ‘genitals’ and that the concept behind the special law having ‘man and woman’ is not restricted to genitals only.
"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," argued the bench which also comprised Justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha.
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While appearing for the Centre, Solicitor General Tushar Mehta requested the apex court to first consider the government’s objections to the batch and the maintainability of the batch of petitions.
Mehta said the subject includes the establishment of a socio-legal relationship of marriage which is the domain of the competent legislature.
The solicitor general also said that states should be heard on the issue. He said since the issue is on the concurrent list, it is possible for one state to agree to it while another is against it. He also said that petitions would not be maintainable if states are not joined.
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Senior Advocate Mukul Rohatgi while appearing for the petitioners said that arguments made by the solicitor general did not hinge on the maintainability of a writ petition by a person who complains that his fundamental rights are being violated. “I have a right to approach this court,” he said.
Advocate Rohatgi also argued that homosexuals have the same rights under the constitution likewise the heterosexual groups of society.
Rohatgi highlighted that the only stumbling block to their equal rights, IPC Section 377, was struck down. “Criminality is now gone. The unnatural part or order of nature is gone from our statute. So, therefore, our rights are equal," he said. The senior advovate argued, “if our rights are identical…, then we want to enjoy the full extent of our rights under (articles) 14, 15, 19 and 21.”
He further spoke about the stigma that homosexual relations face and appealed to the Supreme Court to help get rid of it. “We want privacy in our homes and not face stigma in public places. So we desire the same institution between two people as is available to others – the concept of marriage and family. Because marriage and family are respected in our society,” he said. Rohatgi said the society will accept homosexual relations if the court allows registration of marriages under SMA.
Senior Advocate Menaka Guruswamy further raised the issue of the rights denied to the LGBTQ community post Navtej Johar. She cited rights pertaining to bank account, life insurance, medical insurance. “I cannot buy Supreme Court Bar Association (SCBA) medical insurance," she said.
"This is why we say marriage. Because that is the notion that the legal framework which is premised on common law understands and takes within its fold. So anything short - if it is a civil union, this correspondence will now start with insurance company, with banks, with hospitals, with wills, with estate duties, with anything that is pre requisite to be able to live a life outside a home, including buying that home," he contends.
She contended that if the court does not allow full marriage the LGBTQ community members will have to keep approaching the court to litigate individual issues of discrimination.
Justice Kaul responded to her saying that other nuances may come up later. "It may require more visits to court. We can’t say. But we cannot say that it will be possible to work out all possible nuances now."