“The state cannot discriminate against a person for his/her sexual orientation which is innate to him/her and over which he/she has no control,” the five-judge bench led by CJI DY Chandrachud said as it continued hearing on the demand for legalising same-sex marriage and putting it on the same legal footing as heterosexual unions.
In its affidavit, the Centre had termed the demand as something that concerned the urban elite.
The proceedings on the second day of the hearing on the momentous case for widening the concept of marriage turned up ample indications of the apex court’s outlook.
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Do you support legalising same-sex marriages?
Disapproving the Centre’s description, the CJI said, “When you say it is an innate characteristic, it is also an argument in response to the contention (of the Centre) that it is very elitist or urban or suffers some class bias. Once something is innate, it cannot have any class bias,” the CJI said. “It may be more urban in its manifestations because more people in urban areas are coming out of the closet.”
Senior advocate A M Singhvi, who appeared for the petitioners, said there was nothing urban or rural about sexual orientation.
Questioning the basis of the Centre’s stand, the CJI said, “There is no data provided by the government to indicate that it is an urban concept. There is no data at all.” Taking a cue, Singhvi said one of the arguments advanced by the petitioners was that every averment in the counter-affidavit filed by the government was bereft of data, without a single survey.
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Importantly, in what was seen as reflective of his viewpoint, the CJI went on to deal with the issue of whether same-sex couples were entitled to the entire bouquet of rights — adoption, succession, inheritance — which a heterosexual couple is entitled to as a corollary to the right to marriage.
“Even if a couple is lesbian or gay, it will be open for them to adopt. If a single parent can adopt, why can’t two persons of the same sex living together not be allowed to adopt? So, the argument that it would have an impact on the upbringing of a child is fallacious,” the CJI said as he frowned upon the National Commission for Protection of Child Rights for its stand that children adopted by same-sex couples could face deficiencies in their upbringing and grooming by missing out on either a biological father or biological mother.
This despite the fact that the bench had decided to keep the purview of the adjudication limited to the issue of whether same-sex marriages could be recognised as valid unions under the Special Marriage Act.
The petitioners, through senior advocate Mukul Rohatgi, pointed out that even the Nepalese Supreme Court has asked the government to prepare a gender-neutral marriage law to confer same-sex couples with all rights which are available to heterosexual couples.
“Nepal is not urban elitist. India is far more tolerant and advanced. The Supreme Court of India can surely bring alive the innate constitutional right of equality available to same-sex couples regarding marriage by an unambiguous declaration,” he said.
