Supreme Court today remarked that Central government cannot dub homosexuality and the idea of same-sex marriage as an “urban elitist” concept, especially in the absence of any data to back this claim.
“It may be more urban in its manifestations because more people in urban areas are coming out of the closet,” CJI DY Chandrachud orally remarked.
A Constitution bench bench comprising CJI DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha was hearing the batch of petitions seeking legal recognition for same sex marriages in India.
Senior Advocate AM Singhvi appearing for the petitioners argued against “discriminatory denial” of right to marry based on “ascriptive characteristics” of sexual orientation and gender identity.
“So you’re saying, the state cannot discriminate against an individual on the basis of a characteristic over which a person has no control?” CJI asked.
As Singhvi responded in the affirmative, CJI continued,
“And when you say that this (homosexuality) is an innate characteristic, it’s also an argument in response to the contention that this is very 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. There is no data coming out of the government that this is urban or something.“
At this juncture, Senior Advocate KV Vishwanathan told the bench that his client, Zainab Patel, is a transgender woman who was disowned by her family, begged on the streets and has now risen to become the Director in KPMG. “For her to be branded an “urban elitist” shows absolute lack of grace. Today she is a member of the Transgender Council nominated by the government under the Act!”
Similarly, Advocate Jayna Kothari mentioned that her client Akkai Padmashali was a well known trans activist. “At the age of 15, she was thrown out of her own house. She had to drop out of school, she was on the streets, and thereafter she came back mainstream. These are the lives they’ve led. And to say that this is an elitist concern is wrong.”
Singhvi argued that those who seek marriage, they seek it for (i) community and social validation of a relationship, (ii) sense of security it provides to couples, (iii) greater financial support and security, (iv) marital status by itself is a source of dignity, fulfillment, and self respect, (v) it is an integral aspect for the ability to have and enjoy a family life.
“Adoption, surrogacy, interstate succession, tax exemption, tax deductions- it simply requires marriage- compassionate government appointments…this is only illustrative, not exhaustive. Only marriage is required for these, everything else follows- compensation to dependants, appointment of nominees for receipt of post retirement benefits, spousal communication, right to bodily remains and so on…” Singhvi said.
Here, the CJI pointed that even if a couple is in a gay relationship or a lesbian relationship, one of them can still adopt. “So the argument that this will create a psychological impact on the child is belied by the fact that today as the law stands, it’s open,” CJI said.