Supreme Court contests Centre’s claim that same-sex relationship is an urban-elitist concept

Satya Prakash

Tribune News Service

New Delhi, April 19

The Supreme Court on Wednesday contested the Centre’s contention that same-sex relationships are an urban-elitist concept, saying the government had no data to back up its claim that the concept of same-sex marriage is “elitist” or “urban”.

“It may be more urban in its manifestations because more people in urban areas are coming out of the closet… Anyway, no data is forthcoming from the government to indicate that this is urban. No data at all,” said a five-judge Bench led by CJI DY Chandrachud while hearing petitions seeking legal recognition for same sex marriage.

“When you say that this is an innate characteristic then it’s also an argument in response to the (Centre’s) contention that this is elitist or urban or it has a certain class bias. When something is innate, then it cannot have the class bias,” the Bench said, agreeing with the submissions of senior advocate AM Singhi, who pointed out the Centre’s averments were not supported by any survey or data.

Singhvi, representing one of the petitioners, said those seeking marriage were seeking it for community and social validation of their relationship as it provided a sense of security to couples, apart from a greater financial support and security. Marital status by itself was a source of dignity, fulfilment and self-respect, he added.

On the second day of hearing – the Bench – which also included Justice SK Kaul, Justice SR Bhat, Justice Hima Kohli and Justice PS Narasimha – said the State cannot discriminate against an individual on the basis of sexual characteristics over which the person had no control.

“It is very simple, the State cannot discriminate against an individual on the basis of a characteristic over which the person has no control,” the Bench noted.

In an affidavit filed ahead of the commencement of hearing on April 18, the Centre had told the top court that same-sex marriage was an urban elitist concept far removed from social ethos of India and extending the concept of marriage beyond hetero-sexual union would amount to creating a new social institution.

Maintaining that it was essentially a legislative function which the courts should refrain from deciding, the Centre had said Parliament was “presumed to know what is in the best interest of the people and this is doubly so in the case of Personal Law”.

The top court had on Tuesday indicated that it will not go into the personal laws governing marriages in various communities while deciding the contentious issue and had asked the advocates to confine their arguments to the Special Marriage Act, 1954 which provides for a legal framework for a marriage between a man and a woman belonging to different religions/castes.

Noting that LGBTQIA community was in minority and had no representation in Parliament, senior counsel Mukul Rohatgi said the top court should use its “plenary power, prestige and moral authority” to push the society to acknowledge such a union as would ensure LGBTQIA persons lead a “dignified” life like heterosexuals. He said, the State should come forward and provide recognition to same-sex marriage.

The Bench also deliberated upon the consequences of legalising same-sex marriage including adoption and different marriageable age for male and female.

“Incidentally, even if a couple is in a gay relationship or a lesbian relationship, one of them can still adopt. So the whole argument that this will create a sort of psychological impact on the child is belied by the fact that even today, on the state of the law as it stands, once we have decriminalised homosexuality, it is open to people to live-in together and one of them can adopt. It is just that the child loses the benefit of parenthood so to speak of both the parents,” the CJI noted.