Same-sex marriage hearing Day 3: ‘There is nothing absolute…’: CJI Chandrachud

The Supreme Court of India's hearing into petitions seeking to legalize same-sex marriage continued on third day on Thursday, April 20. The constitution bench began the hearing today, that were live-streamed in the public interest.  

Same-sex couples and LGBTQ+ activists are hoping for a judgment in their favor, while the government and religious leaders strongly oppose same-sex unions. The debate on same-sex marriage is turning out to be a lively one.

Senior advocate Dr. Singhvi and senior advocate KV Vishwanathan, appearing for the petitioners, presented their arguments today. 

READ MORE HERE: Same sex-marriages: SC bench asks petitioners to conclude arguments on 24 April, here's more details

4:15 pm: Arguments are over for the day. CJI Chandrachud has read out the names of lawyers who would be arguing next - Geeta Luthra, Anand Grover, Jayna Kothari, Anitha Shenoy, Menaka Guruswamy, Saurabh Kirpal, Vrinda Grover, Karuna Nundy, Arundhati Katju, Raghav Awasthi, Shivam Singh, Namit Saxena and Manu Srinath.

The petitioners have been asked to conclude their arguments on Monday.

4:11 pm: Advocate Vishwanathan, for the petitioners, said the Centre needs to tailor the Special Marriage Act. "All that is needed is to add husband, wife or "spouse" in Special Marriage Act. Rest will follow. They [Centre] need to tailor it.

3:51 pm: Advocate Vishwanathan cited US court judgments which upheld miscegenation laws which prohibited inter-racial marriages. Read out passages to argue that the argument against same-sex marriages are similar to those arguments against inter-racial marriages, reported Live Law.

3:45 pm: Advocate Vishwanathan says LGBTQ parents are as qualified to rear children as the heterosexual parents. But, there has to be the availability of the choice.

3:40 pm: CJI Chandrachud said, “Same-sex couples seek the same benefits of marriage.” To which, advocate Vishwanathan says that the LGBTQ parents are as qualified to have children as the heterosexual parents.

CJI Chandrachud refers to the trolling he was subjected to yesterday over his “notion of a man and a woman is not an absolute based on genitals” statement, saying, “There are no absolutes as I said, even at the risk of getting trolled.”

2:00 pm: During the hearing, the petitioners requested the CJI Chandrachud-led bench to allow them to present arguments till Monday. The top court is likely to hear the case on four days next week too, starting Monday. 

On the third day of SC hearing on petitions seeking the legalisation of same-sex marriage, the court discussed which partner would be aged 18 years and who would be 21 years old as per the provisions of the Special Marriage Act.

Citing an interpretation of law from a case, Dr. Singhvi argued that the parliament's intention about enacting a legislation cannot restrain the court.

The argument was a response to the Central government's objection that the Supreme Court cannot hear the case since only the parliament is constitutionally permissible body to decide on the creation of a new social relationship, according to a report published by Hindustan Times.

CJI Chandrachud said that by decriminalizing homosexuality, the top court has not just recognized treating relationships between consenting adults of the same gender but also recognized that people who are of the same sex would even be in stable relationships. 

The top court disapproved the central government's stand that the demand for legal validation of same-sex marriage is an ‘urban elitist concept’. It also said that an innate characteristic of a person cannot be called “elitist”.

On the second day, the top court was urged by the Indian government to use its ‘plenary powers, prestige, and moral authority' in taking a decision on legalizing same-sex marriage.

Senior advocate Mukul Rohatgi, appearing for one of the petitioners, said that “the State should come forward and provide recognition to same-sex marriage."

Solicitor General Tushar Mehta, appearing for the Centre, filed a fresh plea urging the top court that all the states and UTs be also made parties to the proceedings on the pleas

Centre urged SC that states, Union Territories be made parties to proceedings on pleas seeking legal validation for same-sex marriages. In this, the Centre informed that it has issued a letter on April 18 to all the states inviting comments and views on the "seminal issue" raised in the pleas.

CJI Chandrachud had on Tuesday (day 1 of hearing) also said the very notion of a man and a woman, as referred to in the Special Marriage Act, is not "an absolute based on genitals".

Mehta cited it is restricted to the genitals and added there were several laws that the court will be making redundant inadvertently if it chose to give legal backing to same-sex marriages. 

He cited the Code of Criminal Procedure's provision that women cannot be examined after a certain time and suggested that a man could claim not to be a man despite having male genitals.

The apex court had on November 25 last year sought the Centre's response to separate pleas moved by two gay couples seeking enforcement of their right to marry and a direction to the authorities concerned to register their marriages under the Special Marriage Act.

India decriminalized homosexuality in 2018, but has yet to extend family rights to the LGBTQ community.