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Same-sex marriage hearing | The case so far

State cannot discriminate against individuals over sexuality, says Supreme Court

Bench says state cannot push aside the need for legal recognition of same sex marriage within LGBTQIA+community as an “urban and elitist” concept

April 19, 2023 09:11 pm | Updated April 20, 2023 08:16 am IST - NEW DELHI

Participants at a pride parade at Shaheed Bhagat Singh college in New Delhi in 2022.

Participants at a pride parade at Shaheed Bhagat Singh college in New Delhi in 2022. | Photo Credit: The Hindu

The Supreme Court on Wednesday said sexual orientation is an innate characteristic over which individuals have no control and the state cannot push aside the need for legal recognition of same sex marriage within the LGBTQIA+community as an “urban and elitist” concept without any data to support the claim.

The Centre has dismissed petitions in the Supreme Court seeking legal status for same sex marriage as an elitist push made by a few influential people. It has said that these petitioners do not reflect the views of the rural, semi-rural and a majority of the urban population of India, who accept marriage as an exclusively heterosexual institution.

“But the state cannot discriminate against individuals on the basis of a characteristic [sexual orientation] over which they have no control,” Chief Justice D.Y. Chandrachud, heading the Constitution Bench, remarked.

Senior advocate A.M. Singhvi and advocate Shadan Farasat, arguing for gay couple Utkarsh Saxena and Ananya Kotia, said their clients have suffered “discriminatory exclusion” only on the basis of their sex and sexual orientation, which is intrinsic to their identity.

“When you say that this is an intrinsic or innate characteristic, it is also an argument in response to the government’s contention that this is all very elitist or urban or biased in favour of a particular class… It may be more urban in its manifestation because more people from the urban areas of this country are coming out of the closet,” Chief Justice Chandrachud observed.

‘No data forthcoming’

The Chief Justice also underscored that the government has shown no data whatsoever that same sex attraction is solely “urban characteristic”.

“There is no data forthcoming from the government,” Chief Justice Chandrachud said.

Senior advocate K.V. Vishwanathan intervened at this point to say that the government’s claim that only elite people have approached the court was “absolutely without grace”.

“My client, Zainab Patel, a transgender person, was thrown out of her house and had to beg in the streets. Through her own efforts she rose in the world. She is now a director with KPMG and a member of the National Council for Transgender Persons. The government itself has nominated her,” he said.

Senior advocate Jayna Kothari said the petitioner she represents in the case, Akkai Padmashali, a trans activist, was also forced to leave home at the age of 15 to make her way in the world.

“The people who have approached this court come from working class backgrounds, to say they are elitists is unfair on the part of the government,” Ms. Kothari addressed the court.

Mr. Singhvi said “social values projected by the government cannot trump equal treatment”.

The Special Marriage Act, which the petitioners want to be made gender-neutral so that they can marry, was meant to be an “alternative to unpopular marriages” which do not answer to the socially, culturally and legally ingrained concept of marriage.

The senior lawyer said the government “hoists with its own petard” when it argues that “marriage is a vital institution”.

“Yes, it is because marriage is a vital institution that we, the excluded community, want all the indices of marriage which comes with marriage… We too, like heterosexuals, seek and deserve it. We too, as vulnerable couples, want the security of marriage. We too see marriage as a gateway to avail the legal protections of law in tax, inheritance, adoption, etc,” Mr. Singhvi said.

Chief Justice Chandrachud poked holes in the government’s argument that living with gay or lesbian couples as parents would “psychologically impact” children.

“Even if a couple is gay or lesbian, one of them could still adopt. This whole argument that it will create a psychological impact on the child is belied by the fact that even today, as the law stands following the decriminalisation of homosexuality, it is open for people who are living together with their same sex partners to adopt a child. It is just that the child would lose the benefit of parenthood, so to speak, of both parents,” the Chief Justice observed.

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