CJI Chandrachud: No data from Govt that same-sex marriage elitist idea

In its second affidavit filed in response to the petitions, the Centre, while urging the court to leave the matter to Parliament, had said: “What is presented before this Hon’ble Court is mere urban elitist views for the purpose of social acceptance” and “the competent legislature will have to take into account broader views and voice of all rural, semi-rural and urban population, views of religious denominations keeping in mind personal laws as well as and customs governing the field of marriage together with its inevitable cascading effects on several other statutes”.

The CJI’s remarks came as Senior Advocate A M Singhvi, appearing for some of the petitioners, drew the attention of the bench also comprising Justices S K Kaul, Ravindra Bhat, Hima Kohli, and PS Narasimha, to what Justice (retired) Indu Malhotra had said in her judgement in the Navtej Johar case in which the SC held Section 377 unconstitutional to the extent it criminalised same sex relations.

Justice Malhotra, the senior counsel said, had stated that “the natural or innate sexual orientation of a person cannot be a ground for discrimination. Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia…A person’s sexual orientation is intrinsic to their being. It is connected with their individuality and identity. A classification which discriminates between persons based on their innate nature, would be violative of their fundamental rights, and cannot withstand the test of constitutional morality”.

Without referring to the affidavit, the CJI responded: “The principle is very simple, the state cannot discriminate against an individual on the basis of a characteristic over which the person has no control…” He added, “and when you say that this is an innate characteristic, it’s also an argument in response to the contention that this is very elitist or urban or has a certain class bias. Something which is innate can’t have a class bias…It may be more urban in its manifestations because more people in urban areas are coming out of the closet”.

Hearing arguments for the second day on the petitions, the CJI also sought to answer apprehensions about gay couples adopting saying that, as the law stands, even a single person can adopt.

“Incidentally, even if a couple is (in) a gay relationship or a lesbian relationship, one of them can still adopt. The whole argument that this will create a psychological impact on the child is belied by the fact that even today, on the state of the law as it stands…once you have decriminalised homosexuality, therefore it’s open for people to live-in together and one of you can adopt. It’s just that the child loses the benefit of parenthood, so to speak, of both parents,” he said.

He was responding to Singhvi’s submission that marriage is a gateway to several consequences like tax, inheritance and adoption.

Singhvi said that the implied exclusion of the entire LGBTQ class from the Special Marriage Act (SMA) is based on a sole marker of identity, their sex and sexual orientation.

He said that “marriage is sought for a community or social validation of a relationship” and “is vital and important because of a sense of security it provides. Singhvi submitted that “just like heterosexuals seek it and deserve it, non-heterosexuals seek it and also deserve it”.

The senior counsel said that the government affidavit mentions words like “socially, culturally, and legally ingrained” and added that it fails to really address that the SMA was created as an alternative to what one might call socially ingrained concepts of marriage.

Senior Advocate Mukul Rohatgi, also appearing for the petitioners, said he was seeking some consequential rights. “We ask for a declaration. The declaration is not just a badge we wear but it must at least go forward even in some limited extent…We want to get us real rights where day to day things are involved: Gratuity Act, Pension Act, Juvenile Justice Act — it provides for adoption.”

On the social acceptance of the LGBTQ community, he said it is a mindset problem, “Society has evolved but some part of that mindset remains which is evident from the stand of the State”.

Rohatgi said that “our parents have by and large accepted us. We have gone through the process with our parents. They want them to settle, have a family, have the same recognition”.

He said that the language of the law should be modified and wherever husband and wife is used, it should be made gender-neutral by using “spouse” and where man and woman is used, it should be made gender-neutral by saying “person”. Justice Kaul said that everything can’t change at once and that other changes will take some more time.

“They’re saying I’m abnormal and what is normal is the majority. But that’s not the law, that’s a mindset. The argument of the other side is that there is a biological man ,a biological woman, their union will lead to procreation, that is the order of nature….The important thing is deconstructing the heteronormative framework…,” said Rohatgi.

The senior counsel said that society sometimes needs to be pushed to acknowledge LGBTQ as equals in all respects because the Constitution says so. This, he added, can be done by the court given the moral authority and public confidence it enjoys. “When the highest court of the land says that you have a right to marry, that is what will drive the society to accept this group.”

Meanwhile, on Wednesday, the Centre filed a fresh affidavit in the court reiterating its demand that states and union territories too be heard before any final decision is taken.

It said that though the Centre requested the court on April 18 to make States a party to the present litigation as any decision will have a bearing on their rights, but “despite the said constitutional, jurisprudentially and logically fair request being made, this Hon’ble Court is not pleased to rule upon the same”.

Solicitor General Tushar Mehta, appearing for the Centre, said that following this, the Centre had on Tuesday written to all Chief Secretaries seeking their view.

The CJI responded that it was good on the part of the government to do so as states would now not be able to say they were unaware. “So you have told them that this matter is going on…That’s excellent. Now it’s not that they are unaware.”

Mehta added “but that would dilute my request that states should be issued notice”.

Rohatgi, however, opposed the prayer and said, “I’m challenging a Central law. Merely because it happens to be in concurrent list, there is no rationale to say that this petition will be barred for non-joinder of states.”