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The Supreme Court was further told by the Senior Advocate that freedom of expression included the right to express one's gender identity in all its manifestations.
On Day 2 of the hearing before a Constitution Bench of the Supreme Court in a batch of pleas seeking recognition for same sex marriages, Senior Advocate Abhishek Manu Singhvi argued that societal values cannot trump equal treatment.
Court was further told that exclusion of same sex couples failed the test of Article 14. "The Special Marriage Act is a secular law, meant to serve as an alternative for individuals..", Singhvi added.
Making a reference to the judgment in Navtej Singh Johar, wherein the Supreme Court had decriminalised Section 377 of the Indian Penal Code, Singhvi said that while the verdict was momentous, it still remained "little done vast undone", and now the Supreme Court was trying to do "significant done" if it gave recognition to same sex marriage.
"Still a lot would be left to achieve...", the senior advocate added.
Adding to the Navtej reference, Court was told that it was now knitting a more seamless web of anti-discrimination on several other facets, "one important facet being recognising that it is not the State alone which threatens these facets of equality, it is also private groups, non-state actors".
The constitution bench was further told that the entire exclusion of the LGBT community was based solely on a ascriptive characteristic, that is their sexual orientation.
"The whole aim of Special Marriage Act was to deal with "unpopular marriages", we have had this legislation for decades. The government is saying that you are liable to be excluded only due to ascriptive characteristics.."
-Senior Lawyer AM Singhvi.
Referring to the Centre's submission in its affidavit that the aspect of marriage fell under legislative domain, it was submitted that this could not be an answer to an Article 14 challenge, as it was a "circular argument".
During the first half of the hearing today, 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.
Yesterday, the senior lawyer projected arguments from the perspective of fundamental rights of the LGBTQIA community.
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.
Case Title: Supriyo@ Supriya Chakraborthy v. Union of India & Anr. (a batch of petitions)
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