The Supreme Court bench is hearing the case to legalise same-sex marriage

Same-sex marriage supreme court: Life can be complicated yet simple. It is up to the person’s attitude and mental aptitude to not get trapped in the needless complexities. They can break it down into simple, understandable things. But when it comes to making things complex, there is no limit to overthinking and intentionally browbeating the definition of something just to showcase one’s oozing intellectualism.

The ongoing case in the Supreme Court over granting legal sanction for same-sex marriage has sparked a new debate. It has thrown open the debate to challenge the established notions of sex, gender, identity, biological male and female, and gender fluidity. So, here are the key developments from days 1 and 2 that took place in the apex court in this matter.

20 petitions in SC seek recognition of same-sex marriage

A five-judge Supreme Court bench is hearing a bunch of pleas to legalise same-sex marriage and its further implications. The bench is headed by CJI DY Chandrachud. The bench also includes Justices SK Kaul, Ravindra Bhat, Hima Kohli, and PS Narasimha.

Around 20 petitions have been filed before the Supreme Court to seek recognition of same-sex marriage as available for heterosexual partners. For this reason, the petitioners have requested that the apex court amend provisions of the Special Marriage Act of 1954. They want to change the wording so that marriage is between “spouses” instead of “man and woman”.

Also read: Marriage equality in the US and lessons for India

Senior Advocate Mukul Rohatgi appeared for the petitioners. He argued that the LGBTQ community should have the same right to a dignified life and the institution of marriage and family that is available to heterosexual persons.

The petitioners have claimed before the court that LGBTQ+ citizens constitute around 7–8% of the total population of India. The petitioners argued that LGBTQIA+ persons were not entitled to the legal protection provided by 15 laws that guarantee the right to wages, gratuities, adoption, surrogacy, etc.

Only Parliament has the authority to create new social relationships

The Union government is being represented by Solicitor General Tushar Mehta. Clearing displaying the Centre’s opposition to these petitions, he challenged the maintainability of these petitions.

Mr. Mehta stated that the Supreme Court first needs to address whether the judiciary is the right forum for this case. He strongly argued that the Parliament was the only constitutionally permissible forum to decide on the creation of a new social relationship. Further, he asserted that we are still questioning whether it’s for the courts to decide on their own. The Union government termed the idea of same-sex marriage merely an “urban elitist view.”

As per the Union government, the creation of a “new social institution” like same-sex marriage cannot be claimed as a matter of right. According to them, it is only the Parliament and not the courts that have to decide on same-sex marriages. As such, marriage is a threat to the “holy union” of marriage between a biological man and woman in India.

Responding to Mr. Mehta’s argument, the CJI remarked that the court can’t be told how to make a decision and that it wants to hear the petitioners’ side. However, the SC bench categorically stated that the focus of the case is limited to the Special Marriage Act and that it won’t touch personal marriage laws.

Also read: A CJI Chandrachud decision that we totally stand with

Responding to the CJI, Mr. Mehta replied by saying, Then, let the government decide how far it will like to participate in these proceedings. Further, Mr. Mehta pointed out that, at present, the idea of marriage was limited to a union between a biological male and a biological female.

In the flow of the argument, CJI Chandrachud questioned the current understanding of sex and gender. CJI Chandrachud said, “The assumption that the very notion of a biological man or woman is absolute is not true. There is no absolute concept of a man or a woman. It’s not a question of what your genitals are; it’s far more complex than that.”

CJI’s remark draws strong criticism

Agitated by the remarks of CJI DY Chandrachud, one of the petitioners, Abhijeet Iyer Mitra, shared a Twitter thread to condemn the remarks. The remarks questioning the concept of biological male and female have not gone down well among a large section of the society. They have argued that while gender fluidity should be discussed and deliberated, unscientific remarks will only hurt the cause of the petitioners, derail the case, and throw it on the wrong track.

As per their limited and humble submissions, a large section has argued that biological male and female on the basis of genitals can’t be questioned in such a loose and capricious manner.

Day 2: Centre’s move to stump judiciary

The SC bench has been discussing the ambit of gender and whether it expanded beyond the biological sex of a person. On day 2 of the hearing, the Centre filed an affidavit before the court asserting that states and union territories should also be made parties to this case. The affidavit claims that the matter falls within the legislative domain, and thus the views of all states and UTs on the same are necessary.

The affidavit states that it is clear that the rights of the States, especially the right to legislate on the subject, will be affected by any decision.

The strong arguments raised by the Centre, particularly the concerns that the views of the state governments should be taken into consideration, will ease things up, especially for those who were jumping the gun and seeking favourable outcomes without having proper discussion on this matter purely on the basis of their political agenda.

The verdict in this case will have far-reaching consequences, some of which are still not fully comprehended by a large section of society. Granting legal sanction to same-sex marriage accompanies the debate on its implications, like adoption, abortion, succession, surrogacy, and criminal laws on physical assaults, among others.

Now let me leave you with a few permutations and combinations that should be analysed before framing laws regarding this. Will the law allow lesbians to marry at the age of 18 and gay couples at 21, but they refuse to accept the definition of biological male and female? In that case, can the gender-neutral terminology like person be replaced to allow marriage for same-sex couples at 18, or will it be 21 then?

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