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Synopsis

Senior Lawyer Mukul Rohatgi reflected on the need to balance rights of marriage and the majority heteronormative structures vis-a-vis the minority LGBTQIA community.

He told a Constitution bench comprising CJI DY Chandrachud, Justice SK Kaul, Justice S. Ravindra Bhat, Justice Hima Kohli, Justice PS Narasimha that just because the heterogenous majority had fixated views, it cannot weigh down the minority.

"The heterogenous majority has no right to steamroll the minority.. all discorded notes have been corrected by this court over time, this court is the guarantor of fundamental rights.... .and if India has to go forward, this court has to take the lead and say, look Mr. Society, remove the stigma, remove this dogma.. because this court enjoys moral confidence," the Senior Lawyer made an ardent appeal for the rights of the LGBTQIA community.

He then pointed out that Indian morality is not based on victorian structures and it is evident from a view of the Khajuraho temples in the state of Madhya Pradesh, highlighting that impositions against the LGBTQIA community are a colonial concept and should be shunned.

"Go to Khajuraho, our morality was forward since then, not Victorian.. the society has travelled through twisting stands of time. British period stuck because they conquered us, and those Victorian morals were imposed on us"
- Senior Advocate Mukul Rohatgi

Rohatgi also stated that India had freed itself from the British 75 years ago and it was time to go past old concepts. He said that even when the Hindu Code was introduced and reforms were carried out in the early 1950's, there was a lot of backlash against them and it was introduced in a truncated form. However, they were accepted later.

"When the Hindu Code Bill came in 1950, the Parliament was not ready, then it came in a truncated form.. so what was not accepted in 1950 it was later accepted in 1956-57..so we cannot say that change did not happen..," Rohatgi argued.

Yesterday, the senior lawyer projected arguments from the perspective of fundamental rights of the LGBTQIA community.

 

While making their case seeking "real rights", the Court was told that people should not look at same-sex couples with disdain. "They should not tell me you are "queer"..they should not say we will not be friends with you..", he said.

In November last year, the Supreme Court issued a notice in the plea moved by a gay couple seeking legal recognition of same-sex marriage under the Special Marriage Act, of 1954.

Senior Advocate Mukul Rohatgi appearing on behalf of the petitioner-couple had then submitted before a bench comprising CJI Chandrachud and Justice Hima Kohli that the issue was a sequel to Navtej Singh Johar's judgment.

The absence of a legal framework that allows members of the LGBTQ+ community to marry any person of their choice had been raised by the instant plea.

Case Title: Supriyo@ Supriya Chakraborthy v. Union of India & Anr. (a batch of petitions)