There is more acceptance for homosexuality since it was decriminalised in 2018, says chief justice

Chief Justice DY Chandrachud on Tuesday said that there is greater acceptance in the Indian society towards homosexuality since it was decriminalised by the Supreme Court in 2018, Live Law reported.

A five-judge bench headed by Chandrachud is hearing multiple petitions seeking recognition of same-sex marriages.

“Between Navtej [Johar judgement] and today, our society has found much greater acceptance of same-sex couples,” the chief justice said at Tuesday’s hearing. “That’s very positive because you find that there is a greater acceptance in our universities.”

In the Navtej Singh Johar case of 2018, the Supreme Court had decriminalised homosexuality in India. A five-judge Constitution bench had unanimously held that the criminalisation of consensual gay sex under Section 377 of the Indian Penal Code was “irrational, indefensible and manifestly arbitrary”.

In the pleas seeking legal backing for same-sex marriages in India, the petitioners have argued that these provisions allowing only a man and a woman to get married are discriminatory against the LGBTQIA+ community and infringe on their fundamental right to dignity and privacy.

What happened at today’s hearing?

At Tuesday’s hearing, Advocate Mukul Rohatgi, appearing for one of the petitioners, argued that those in same-sex relationships should have equal rights as heterosexuals, reported Bar and Bench.

“They [same-sex partners] want to live a dignified life and for that Section 377 has been effaced and now there has to be recognition of the right to marriage and recognition by the state,” Rohatgi said. “... so that society follows the state, as it is resistant to change.”

Advocate Menaka Guruswamy, appearing for another petitioner, told the court that recognition of marriage was not only about dignity but was also “a bouquet of rights” that comes with it, according to The Indian Express.

She argued that same-sex partners are denied bank accounts, life and medical insurance among other things.

“One facet is the constitutional value of dignity, equality, fraternity and liberty and the other facet is the day-to-day business of life,” she told the court.

Meanwhile, Chandrachud orally observed that the condition of a 30-day notice period in the Special Marriage Act is unconstitutional, according to Bar and Bench.

A section of the Special Marriage Act, 1954, requires an interfaith couple to give written notice of the marriage to the district marriage officer. This publicly published notice provides for a subsequent hearing on objections to the marriage.

In another oral observation, the chief justice said that the concept of gender does not hinge upon an individual’s genitals.

“There is no absolute concept of a man or an absolute concept of a woman at all...It’s not the question of what your genitals are,” he said, according to Live Law.

Chandrachud was responding to Solicitor General Tushar Mehta, who had argued that the acceptance of societal relationships does not depend on judgements. Mehta added that even the Special Marriage Act was premised on the relationship “between a biological male and a biological female”.

After Chandrachud said that the concept of gender was not dependent on an individual’s genitals, Mehta responded by saying that many laws would become “non-workable” if that definition were to be followed.

“If I have genitals of a man but otherwise am a woman, as being suggested, how will I be treated under CrPC? As a woman?” the solicitor general questioned. Mehta then went on to contend that the matter of whether a law should be made to recognise same-sex marriages should be left to Parliament.

Mehta had started his arguments on Tuesday by saying that the maintainability of the same-sex marriage petitions should be dealt with first. He argued that it was a matter to be dealt with by the legislature and not the judiciary.

The solicitor general repeatedly urged the court to consider the question of the maintainability of the pleas even as the chief justice said that the court wanted to hear the petitioners’ submissions first, Bar and Bench reported.

Chandrachud eventually shot back at Mehta, saying: “I am in charge I will decide... we will hear the petitioners first. I will not allow anyone to dictate how proceedings will happen in this court.”

Same-sex marriage petitions

The Central government has opposed the petitions arguing that living together as partners and having sexual relationships with same-sex individuals is not comparable to the Indian family unit concept that involves a biological man and biological woman. It also told the court that the petitions seeking legalisation of same-sex marriage in the country only represent “urban elitist views for the purpose of social acceptance”

The government’s stand is in consonance with that of the Rashtriya Swayamsevak Sangh and the Jamiat Ulama-i-Hind, who have maintained that marriages should be allowed only among opposite genders.

However, psychiatrists body Indian Psychiatric Society and the Delhi Commission for Protection of Child Rights have expressed support for the recognition of same-sex marriage.