No data from govt to indicate it is ‘urban-elitist concept’, SC on same-sex marriages

NEW DELHI: The Supreme Court on Wednesday said there is no data to show same-sex marriages is an elitist concept, while picking holes in Centre's contention that petitioners seeking same-sex marriage rights is "a mere urban elitist views for the purpose of social acceptance".

It stressed that the state cannot discriminate against an individual on the basis of a characteristic over which the person has no control, and something which is innate cannot have a class bias.

The top court further added that incidentally, even if a couple is in a gay relationship or lesbian relationship, one of them can still adopt.

Senior advocate Abhishek Manu Singhvi, representing some of the petitioners, submitted before a five-judge bench headed by Chief Justice of India D.Y. Chandrachud that a person's sexual orientation is intrinsic, it is connected with their individuality and identity, and a classification which discriminates persons on their innate nature would be violative of their fundamental rights and cannot withstand the test of constitutional morality.

At this juncture, the Chief Justice said: "The state cannot discriminate against an individual on the basis of a characteristic over which the person has no control." Singhvi agreed and added, this is very simply put and that is also the essence of it.

The Chief Justice further added: "When you say it's an innate characteristic, it's also an answer to argument in response to the contention that it is elitist or urban or it has a certain class bias. Something which is innate cannot have a class bias... it may be more urban in its manifestations because more people in urban areas are coming out of the closet."

He stressed that there is no data coming out of the government to indicate this is urban, no data at all. Singhvi replied that every averment in the Centre's counter- affidavit is without single survey, single data, or single test.

Senior advocate K.V. Viswanathan contended that his client is a transgender woman who was disowned by her family and later she rose to a prominent position in a multinational company, and for her to be branded as an urban elitist shows lack of grace.

Singhvi argued that those who seek marriage, they seek it for community and social validation of a relationship, sense of security it provides, and marital status by itself is a source of dignity etc.,

The Centre, in its application, has told the Supreme Court that demand for same-sex marriage is a "mere urban elitist views for the purpose of social acceptance", and recognising the right of same sex marriage would mean a virtual judicial rewriting of an entire branch of law.The central government had stressed that petitions which "merely reflect urban elitist views" cannot be compared with the appropriate legislature which reflects the views and voices of a far wider spectrum and expands across the country.

Singhvi emphasised that the most important is discriminatory exclusion of this class on only sex and sexual orientation, and added that marital status is a gateway to other legal and civil benefits such as tax benefits, inheritance, and adoption.

The bench - comprising justices Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli, and P S Narasimha - noted that "incidentally, even if a couple is in a gay relationship or lesbian relationship, one of them can still adopt. 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 you have decriminalised homosexuality, therefore it is open for people to live-in together and one of you can adopt".

Earlier during the day, senior advocate Mukul Rohatgi, representing some petitioners, submitted that in the Special Marriage Act (SMA), wherever 'husband' and 'wife' is used, it can be made gender neutral by using 'spouse', and 'man' and 'woman' should be substituted by 'person', while insisting that a large part of problem will be solved through this interpretation.

Rohatgi said the top court needs to push the society to acknowledge the same-sex marriage and this court, besides the power under Article 142 of the Constitution, has moral authority and it enjoys public confidence. "We rely on the prestige and moral authority of this court to ensure that we get our right," he added.

Rohatgi pressed that the state should come forward and provide recognition to same-sex marriage, which will help in leading a dignified life like heterosexuals.

The hearing in the matter will continue on Thursday.

The top court is hearing a batch of petitions challenging certain provisions of the Hindu Marriage Act, Foreign Marriage Act and the Special Marriage Act and other marriage laws, as unconstitutional on the ground that they deny same sex couples the right to marry or alternatively to read these provisions broadly so as to include same sex marriage.