Growing up with lesbian or gay parents will not necessarily make a child lesbian or gay, a puzzled Supreme Court on March 13, 2023 confronted the government’s concern about the “psychological” impact same-sex marriages may have on children.
Chief Justice D.Y. Chandrachud referred petitions seeking legal recognition of same-sex marriages to a Constitution Bench, but took the time on Monday to soothe the government’s anxiety about how such a move would affect Indian “social ethos”.
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“The Parliament will have to examine… The Parliament will have to see what would be the psychology of a child who has seen either two men or only two women as parents… What would be the psychology of a child who was not reared by a father and a mother… Parliament will have to debate whether we would like this institution to be recognised in view of our social ethos…” Solicitor General Tushar Mehta, for the Union, objected to the court’s intervention.
“But, Mr. Solicitor, the adopted child of a lesbian couple or a gay couple does not necessarily have to be lesbian or gay…” Chief Justice Chandrachud said.
At one point, the Solicitor General said, “Your Lordships are shouldering a very heavy burden of how society will develop henceforth.”
The government denied any stigma attached to same sex relationships.
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“The question here is whether this relationship, as part of right to dignity, can be given recognition by the state,” Mr. Mehta said.
Chief Justice Chandrachud said the case involved an “interplay” between constitutional rights of life, liberty, dignity, equal treatment of members of the LGBTQ+ community on one side and specific statutory enactments that consider only a married union between a biological man and woman on the other side.
The three-judge Bench, also comprising Justices P.S. Narasimha and J.B. Pardiwala, invoked Article 145(3) of the Constitution to refer the case to a five-judge Bench. Article 145(3) mandates that cases involving substantial questions and interpretation of the Constitution should be heard by a Bench of at least five judges.
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The hearing of the case would be livestreamed from April 18 in public interest, the Bench said.
The petitioners argued that the court’s judgment in the Navtej Singh Johar case in 2018, while decriminalising homosexuality, had also upheld the individual right to family and choice of partners.
“Right to love and marry cannot be withheld from a class of persons solely on the basis of their sexual orientation or gender identity. Right to marry is the natural consequence of the decriminalisation judgment,” senior advocate A.M. Singhvi, for petitioners, submitted.
Senior advocates Neeraj Kishan Kaul, Menaka Guruswamy and Arundhati Katju, also for petitioners, said the “right to life includes dignity of choice and family, marriage, procreating and sexual orientation”.
Advocate Arundhati Katju argued that there were at least three petitions filed in the Supreme Court by couples with children.
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Mr. Kaul referred to the apex court’s judgment upholding privacy as a constitutional right, submitting that the right to privacy of same-sex couples involves “making vital, personal choices, including the right to marry”.
The denial of the status of marriage to same-sex couples directly affects their right to choose a partner.
“This affects their right to expression, dignity and self-respect, which is protected under Articles 14 and 21 of the Constitution. The State cannot deny them their rights. Statutes have to be suitably tailored to recognise these rights,” senior advocate K.V. Vishwanathan argued.
He highlighted the need to give same-sex marriages legal recognition as issues of inheritance, adoption, etc., would come into play.
The petitioners have contended that the Special Marriage Act of 1954 should grant same-sex couples the same protection it allowed inter-caste and inter-faith couples who want to marry. They said they did not want to interfere with individual personal laws but only sought to make the 1954 Act gender-neutral. The petitioners argued that 15 legislations that guaranteed the rights of wages, gratuity, adoption, surrogacy, etc., were not available to the LGBTQ+ citizens.
The government, in a recent affidavit, countered that same-sex marriage was antithetical to the view held by many in India that marriage was a “holy union, a sacrament and a sanskar” between a biological man and a woman.
Any “deviation” from this “statutorily, religiously and socially” accepted norm in “human relationship” can only happen through the legislature and not the Supreme Court, the Centre has said.