A five-judge Constitution bench of the Supreme Court comprising Chief Justice of India DY Chandrachud, Justices SK Kaul, Ravindra Bhat, Hima Kohli, and PS Narasimha, is hearing a batch of petitions seeking legal recognition of same-sex marriage in India. The petitioners have sought the provisions of the Special Marriage Act, of 1954, to read marriage as between “spouse” instead of “man and woman”.
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Judiciary right forum to create new socio-legal relationships?: Solicitor General Tushar Mehta
Solicitor General Tushar Mehta, appearing for the government, said that the court needs to first address whether the judiciary is the right forum to create new socio-leal relationships instead of parliament.
“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,” he said.
‘LGBTQ community should have the right to the institution of marriage’: Senior advocate Mukul Rohatgi
Senior advocate, Mukul Rohatgi appearing for the petitioners, argued that the LGBTQ community should have the right to a life of dignity and to the institution of marriage, all of which is available for heterosexuals.
“We are persons who are of the same sex. We have, acc to us, the same rights under constitution as heterosexual group of society. Your lordships have held that. The only stumbling block on our equal rights was 377,” he said.
“If our rights are identical as held by the State, then we want to enjoy the full extent of our rights under 14,15,19,and 21,” he added.
“We want privacy in our homes and not face stigma in public places. So we desire same institution between two people as is available to others- the concept of marriage and family. Because marriage and family is respected in our society. There is no reason why once our rights are identical, we don’t get this. That has been the development in US and other states. We want a declaration that we have a right to marry, that right will be recognised by the State & will be registered under Special Marriage Act,: he said.
No absolute concept of ‘man’, ‘woman’, says CJI
Chief Justice DY Chandrachud said “Declaration of marriage as a fundamental right has been implicit in the constitutional guarantee of 14,19,21.
And then step two, can also find recognition with an appropriate reading to Special Marriage Act. So you’re not going into the broader issue of personal laws.”
“You are making the assumption that the notion of male and female is absolute. There is no absolution concept of biological man and woman. It is not just what your genitals are. It is far more complex,” he said.
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