New Delhi: The Supreme Court on Wednesday sought to counter the Centre’s claim that the demand for legal recognition of same-sex marriages is merely the voice of “urban elitist views”, while noting that the government’s claim was not supported by any data. Not there.
On Sunday night, the government filed its second affidavit in response to petitions seeking legal recognition of same-sex marriages. It said the petitions before the court “reflect urban elitist views aimed at social acceptance.”
However, in a categorical rejection of the government’s claim, Chief Justice of India DY Chandrachud orally on Wednesday said that “there is no data coming from the government that this (same-sex marriage) is urban”. [concept] or something else.”
He also said that same-sex relationships “may be more urban in their manifestations because more people are coming out of the closet in urban areas.”
The CJI made the remark when senior advocate Abhishek Manu Singhvi, appearing for one of the petitioners, submitted that same-sex couples were facing discrimination only on “sexual orientation”.
On Singhvi’s argument, the CJI said: “So you are saying that the state cannot discriminate against a person on the basis of a characteristic over which the person has no control.”
“And when you say it is an innate feature, it is also an argument in response to the contention (of the central government) that it is too elitist or urban or has a certain class bias. What is simple cannot have class bias.
Rejecting the central government’s preliminary objection on the maintainability of the pleas, a five-judge constitution bench headed by CJI Chandrachud on Tuesday began hearing pleas seeking legalization of same-sex marriages. It also includes Justices Sanjay Kishan Kaul, S Ravindra Bhat, PS Narasimha and Hima Kohli.
CJI Chandrachud did on Tuesday Said That the notions of man and woman are “not absolute based on genitalia”, even as the bench insisted that it would be “free from personal laws”.
The government had told the court not to go ahead with the matter as Parliament was the appropriate forum to debate it.
Notably, in March, the government filed the first affidavit before the apex court claiming that “heterosexual relationships are a norm”.
Read also: ‘No reason to hold them back’ – how the courts have become a supportive system for gay couples
‘States know hearing is on’
The Center on Tuesday night filed its third affidavit in the matter, reiterating its stand that the court should hear states as well, as “marriage” was a subject listed under the Concurrent List of the Constitution and states have the liberty to frame it. their own rules regarding marriage registration.
On Tuesday, Solicitor General Tushar Mehta made the submission before the bench, however, it was not taken into account.
The central government, in a fresh five-page affidavit filed by KR Saji Kumar, joint secretary and legislative counsel in the Union Ministry of Law and Justice, also said that even if the court intends to limit hearings of the Special Marriage Act (SMA). , it still entails judicial creation of a social institution called “marriage” of a different kind than that contemplated under the existing law.
The affidavit states that any decision by the court without making the states a party, without taking their opinion, would be incomplete and trivialize the existing “prejudicial practice”, to make the states a party in its “constitutionally, jurisprudentially and logically fair”. Repeating request”. Parties to proceedings.
Since the court has not yet issued notices to the states, the central government said it has initiated the consultation exercise on its own.
The bench, before commencing the hearing on Wednesday, noted and appreciated the outreach of the central government to the states. “It is good that you have written to them. Now they know that we are hearing the matter,” the CJI told Mehta.
However, the court declined to accept the solicitor’s request that once the central government concludes its consultation process, obtain the views of the states and place it on record before the court.
‘Same-sex couples face ostracism’
Senior advocate KV Vishwanathan, representing a transgender petitioner in the case, also objected to the government’s approach and said that his client was disowned by the family and was left to beg on the streets.
“Today he is a director in KPMG (a global consulting firm). For him to be branded an urban elite shows a complete 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 arguments on Wednesday. He made an emotional appeal before the court as to how these members of the LGBTQ community resolved issues with their parents and came out of the closet. Nevertheless, he faced ostracism from society, which affected his parents as well.
He dismissed the central government’s view on same-sex marriage as “an elitist concept” and said the right to privacy includes sexual activity, companionship, marriage, family and movement in public places.
“The right to make fundamental choices would also include marriage,” he argued.
Rohatgi explained how the exclusion of same-sex couples was a result of Victorian morality imposed on Indians.
“Go back thousands of years and our morals were very different. It (same-sex relationships) was never stigmatised. We had changes after the Lodhi dynasty, then the Mughal dynasty and then the British. India is still following British codes and morals. The society has traveled through the rolling 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 states recognize and register such unions.
Singhvi said the SMA is “a non-religious” matrimonial law and is not based on the “cultural understanding” of marriage as a union as presented by the central government. He addressed the court on the need to interpret the SMA as a “constitutionally compliant law”.
(Editing by Anumeha Saxena)