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Synopsis

Senior Advocate Mukul Rohatgi, told the Supreme Court Constitution Bench today that the denial of right of marriage to same sex couple amounts to a denial of citizenship.

"When you deny me the right of marriage, you deny me citizenship, you say I am not good enough like other citizens, I am told you stay in the closet or in the bedroom, because I am not as good enough as other citizens...", Rohatgi told the bench.

Supreme Court is currently hearing a batch of petitions seeking recognition of marriage between the same-sex on the basis of constitutional principles.

Court was further told today that decriminalizing of Section 377 of IPC (which criminalized all sexual acts "against the order of nature") is not good-enough, as the LGBTQIA community is still perceived as persons who are upto no good, unworthy of standing shoulder to shoulder with others in the heteronormative structure.

Comparing same sex couples to live-in relationships, Court was told that even they had rights now under the Domestic Violence Act, but the petitioners did not.

"A person has a right to choose a partner for marriage.. This is the province of this court, not the parliament, as your lordships are the protectors of fundamental rights, you should repel the argument that we must wait for the parliament to act..", Rohatgi added.

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..", petitioners submitted.

Stating that the opposition thinks of them as "lesser mortals", the petitioner submitted that "Gender identity lies at the core of right to dignity of a person, so it needs to be protected."

At the beginning of the hearing, CJI DY Chandrachud today reflected on existing gender spectrums during the hearing on same-sex marriage recognition.

During the hearing, the exchange between the CJI and the Solicitor General of India Tushar Mehta (SG) riveted around the existing scope of the institution of marriage in India. 

When the Constitution bench, also comprising Justice SK Kaul, Justice S. Ravindra Bhat, Justice Hima Kohli, Justice PS Narasimha pointed out that the Special Marriages Act will be delved into for the time being, the SG pointed that as of now, the concept of marriage existed between a biological male and a biological woman. To this, the CJI said, "There is no absolute notion of a man and it is far more complex than that, it is far beyond what your genitals are".

The SG replied to this and said, "A biological man is a biological man.. also there are separate age limits prescribed". He added that the Centre, however, did share concerns of dignity and discrimination associated with the issue.

At the beginning of the hearing, the court said it will hear the petitioner(s) in order to understand skeletal averments that are to be projected, after the SG pointed out that the Centre's preliminary objection of the issue being part of legislature's domain must be decided first.

"In that case, the government will have to decide whether it will participate in the hearing," he added.

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.