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Solicitor General Tushar Mehta (SG) extrapolated before Supreme Court, as to why the issue concerning same sex marriage recognition deserves to remain in the domain of the legislature. He was arguing before a constitution bench comprising CJI DY Chandrachud, Justice SK Kaul, Justice S. Ravindra Bhat, Justice Hima Kohli, Justice PS Narasimha today for the Union of India.

He touched upon the various notions of gender that exist in the LGBTQIA+ community and while touching upon the "+" that forms part of the terminology, he said that this represents gender fluidity, which in creates a set of people who are unrecognised per se. "So effectively, the court will be deciding on an issue of people which are unrecognised," he said, adding that this is so because gender fluidity commands that a person asserts self-identification depending on their own whim. "It depends on mood swings and surroundings also. The + includes about 72 genders," the law officer told court.

"If there is an unrecognised group of people from perspective of gender identity, is it possible to come up with regulations for each situation by court? In this case, there may be 101 diff contingencies! The class with which your lordship is dealing with is vague. It has its own problems. It will create its own issues."
- Solicitor General Tushar Mehta

The basis of his submission rested on the question of whether in such a scenario, it would be appropriate for the court to legislate on the issue at hand. SG then argued on the consequences of court deciding the recognition of same sex marriage on other laws. 

"Recognition of same sex marriage will open 160 other laws for change. Is this a matter for court to decide or a matter of legislative policy?"
- Solicitor General Tushar Mehta

The law officer then cited Dobbs v. Jackson Women's Health Organization which overturned right to abortion in USA to explain the principle of legislature's position for regulating the laws. He specifically also emphasised on the fact that the judgment must be seen only from the perspective of the principle of jurisprudence and not from the abortion issue. "We are way ahead of the USA in many ways. I am the last person to cite foreign judgments. This is being cites only from the perspective of principle," he told the court.

Finally, he disputed Mr. Rohatgi's argument on the non-existence of gays and lesbians in the 1950's as the reason for their exclusion in the Special Marriage Act and Hindu Codes. He insisted, by citing the parliamentary debates concerning the legislations, that the issue was well recognised even back in the day, but same sex marriage was specifically kept out of the domain of the statute.

"Parliament was aware of lesbian and gay people even at the time of introduction of hindu code bills and special marriage act. There was usage of word “party” instead of man and woman. There was separate ages mentioned for marriage for both sexes"
- Solicitor General Tushar Mehta

The Respondent(s) will continue to argue tomorrow. 

Today was day 5 of the hearings in the plea(s). 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 and thus the batch of petitions. 

 

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