All That's Being Said In The Court For Legalisation Of Same-Sex Marriages In India

After four years of decriminalisation of section 377 of the Indian Penal Code (IPC), the Supreme Court of India started hearing a plea regarding the legalisation of same-sex marriages in India on April 18. Here are the arguments from inside the court.

The Centre

Solicitor General (SG) Tushar Mehta is fighting the case on behalf of the centre which is against the legalisation of same-sex marriages in India.

Petitioners

Senior Advocate Mukul Rohatgi has been presenting arguments in front of the bench in favour of legalising same-sex marriages in India.

Day 1 - Morning Session

The Centre raised a concern that only parliament holds the right to make the decision. SG Mehta asked the bench for some time to confirm with the government the extent of its involvement.

The Apex Court Has The Right

To Mehta’s concern, CJI Justice Chandrachud stated that the apex court holds the right to decide how the hearing would proceed and who would take a decision on the matter.

The Significance Of Hindu Marriage Act

Mehta suggested that the Hindu Marriage Act should be considered in the matter, which was dismissed by the CJI. He said that the case has an impact on everyone, irrespective of their religion and so the personal laws do not hold significance.

Biological Identities

The CJI further dismissed SG Mehta’s argument about biological identities since in modern times, there is no ‘absolute’ definition of a ‘man’ or ‘woman’.

‘Urban Elitist Concept’

Rohatgi mentioned that it hurt the petitioners and people from the queer communities when the central government called same-sex marriage an ‘urban elitist concept’. He further argued that the state is denying recognition to relationships except those between heterogeneous couples.

Gender Identity-based Discrimination

Rohatgi argued that recognition of one’s gender identity must lie under the fundamental right to dignity. “Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of an individual”, he added.

Equal Rights For Homosexual Couples

Rohatgi added, “When you deny me the right of marriage, you deny me citizenship. If you deny me citizenship, you are saying you're no good, you're not equal to a citizen under the preamble so you stay where you are.”

Day 2

The SG stated, "We want to get our real rights where day-to-day things are involved - Gratuity Act, Pension Act, Juvenile Justice Act- it provides for adoption- you can't adopt unless married.”

The Special Marriage Act

Rohatgi appealed to the court to make amendments to the Special Marriage Act (SMA). his request was to remove ‘husband’ and ‘wife’, wherever mentioned, and change them to a gender-neutral term like ‘spouse’.

Full And Equal Citizenship

Rohatgi argued, "Nobody can deny full and equal citizenship- it can't be sans marriage, sans family, sans the respect of marriage,... It's already the law of the land. But it stopped at decriminalization because that was the issue then…I want to walk into a space with my partner knowing the law and State recognise this union, so no one can stigmatise it."

Discriminatory Exclusion

The CJI observed, "The State cannot discriminate against an individual on the basis of a characteristic over which a person has no control" when Advocate Singhvi spoke about the discriminatory exclusion of LGBTQ+ folks based on sex and sexual orientation.

Adoption

The CJI Justice Chandrachud mentioned that even if a couple is in a homosexual relationship, they 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," he added.

Right to Choose

Senior Advocate Singhvi argued that the heart of this case is the 'right to choose' and that the “heart of the matter is the right to choose the most enduring of all relationships, a marriage, and to manifest love in it, regardless of sex or sexuality".

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