Chief Justice of India (CJI) DY Chandrachud said that there is no absolute concept of biological man and woman. CJI Chandrachud added that these matters are far more complex than one’s genitals. The CJI’s comments came while hearing the petitions referred to a larger bench for an authoritative procurement by the CJI-led bench.
Besides the CJI, the five-bench comprises justices SK Kaul, Ravindra Bhat, Hima Kohli, and PS Narasimha. The petitions before the top court include the pleas seeking recognition of same-sex marriage under several Acts including the Special Marriage Act, Foreign Marriage Act, and the Hindu Marriage Act.
Citing the 2018 Navtej Singh Johar judgment, Justice Chandrachud said society has found greater acceptance of same-sex relationships, which is evolving. In the Navtej Singh Johar vs Union Case of India judgment, the former CJI Dipak Misra found “criminalising carnal intercourse” to be “irrational, arbitrary and unconstitutional”.
Solicitor General Tushar Mehta appearing on behalf of the BJP-led Central government urged the top court to first take up the Centre’s plea raising preliminary objections on the plea seeking recognition of same-sex marriage.
S-G Mehta said that the Parliament should consider this issue once. He also said that there is no question about the privacy and dignity of LGBTQ persons.
The government lawyer further said there is no shortcoming in the Transgender Persons (Protection of Rights) Act and the question is not of granting social-legal sanction. Solicitor General Mehta also said nobody will discriminate against transgender persons and that there are provisions of reservation for the community as well.
He was quoted as saying by India Today, “The question is not about the right of privacy and dignity of LGBTQ persons. The question is, can the right of recognition of socio-legal relationships be given by a judicial order rather than through legislation by Parliament? I am only on maintainability.”
Petitioners said in their plea that the LGBTQ community should have the right to get married, the right to be recognised by the state, and be registered under the Special Marriage Act of 1954 and other statutes. They also sought revisions in the provisions of the Special Marriage Act of 1954 to read marriage as between ‘spouses’ rather than a ‘man and woman’.
Senior advocate Mukul Rohatgi, appearing on behalf of the petitioner, further sought that the Special Marriage Act provisions should read marriage as between ‘spouse’ instead of ‘man and woman’ or ‘husband and wife’. He also said that those in same-sex relationships should have equal rights as heterosexual people.
Senior advocate Menaka Guruswamy said petitions have also raked up the Hindu Marriage Act, which is an issue of statutory law and not personal law. While responding to senior advocate Menaka Guruswamy’s argument, Justice Chandrachud said it may not be important for the court to get into personal laws at all. He also questioned that if one were to consider the Hindu Marriage Act, what about Muslims, Parsis and Buddhists.
The CJI said, “Perhaps if you consider the HMA, then what about Parsis, Muslims, Buddhists? Confine yourself to a limited canvas and then allow society and Parliament to evolve, because they are also following societal change.”
The Centre, on the other hand, filed a plea saying that pleas seeking legal recognition of same-sex marriages are reflective of urban elitist views and cannot be compared with the appropriate legislature, which is reflective of the views and voices of a far wider spectrum. The Centre also said that any creation of rights, recognition of relationships, and giving legal sanctity can only be done by the competent legislature and not judicial adjudication.
TL;DR in a high profile court case on whether to legalize same sex marriage, the Indian Supreme Court decides there is no such thing as a man or a woman. Link / Archive
Besides the CJI, the five-bench comprises justices SK Kaul, Ravindra Bhat, Hima Kohli, and PS Narasimha. The petitions before the top court include the pleas seeking recognition of same-sex marriage under several Acts including the Special Marriage Act, Foreign Marriage Act, and the Hindu Marriage Act.
Citing the 2018 Navtej Singh Johar judgment, Justice Chandrachud said society has found greater acceptance of same-sex relationships, which is evolving. In the Navtej Singh Johar vs Union Case of India judgment, the former CJI Dipak Misra found “criminalising carnal intercourse” to be “irrational, arbitrary and unconstitutional”.
Solicitor General Tushar Mehta appearing on behalf of the BJP-led Central government urged the top court to first take up the Centre’s plea raising preliminary objections on the plea seeking recognition of same-sex marriage.
S-G Mehta said that the Parliament should consider this issue once. He also said that there is no question about the privacy and dignity of LGBTQ persons.
The government lawyer further said there is no shortcoming in the Transgender Persons (Protection of Rights) Act and the question is not of granting social-legal sanction. Solicitor General Mehta also said nobody will discriminate against transgender persons and that there are provisions of reservation for the community as well.
He was quoted as saying by India Today, “The question is not about the right of privacy and dignity of LGBTQ persons. The question is, can the right of recognition of socio-legal relationships be given by a judicial order rather than through legislation by Parliament? I am only on maintainability.”
Petitioners said in their plea that the LGBTQ community should have the right to get married, the right to be recognised by the state, and be registered under the Special Marriage Act of 1954 and other statutes. They also sought revisions in the provisions of the Special Marriage Act of 1954 to read marriage as between ‘spouses’ rather than a ‘man and woman’.
Senior advocate Mukul Rohatgi, appearing on behalf of the petitioner, further sought that the Special Marriage Act provisions should read marriage as between ‘spouse’ instead of ‘man and woman’ or ‘husband and wife’. He also said that those in same-sex relationships should have equal rights as heterosexual people.
Senior advocate Menaka Guruswamy said petitions have also raked up the Hindu Marriage Act, which is an issue of statutory law and not personal law. While responding to senior advocate Menaka Guruswamy’s argument, Justice Chandrachud said it may not be important for the court to get into personal laws at all. He also questioned that if one were to consider the Hindu Marriage Act, what about Muslims, Parsis and Buddhists.
The CJI said, “Perhaps if you consider the HMA, then what about Parsis, Muslims, Buddhists? Confine yourself to a limited canvas and then allow society and Parliament to evolve, because they are also following societal change.”
The Centre, on the other hand, filed a plea saying that pleas seeking legal recognition of same-sex marriages are reflective of urban elitist views and cannot be compared with the appropriate legislature, which is reflective of the views and voices of a far wider spectrum. The Centre also said that any creation of rights, recognition of relationships, and giving legal sanctity can only be done by the competent legislature and not judicial adjudication.
TL;DR in a high profile court case on whether to legalize same sex marriage, the Indian Supreme Court decides there is no such thing as a man or a woman. Link / Archive
