The Union government does not have any data to support its claim that seeking recognition for same-sex marriage is an “urban elitist” view, Chief Justice of India DY Chandrachud said on Wednesday, according to Bar and Bench.
The Centre had made the claim in an affidavit before the Supreme Court, which is hearing a batch of petitions seeking legal provisions for same-sex marriages in India.
On Wednesday, Chief Justice Chandrachud said that the perception of same-sex marriages being an urban concept could be because more people in cities are open about their sexual orientation. He said that the perception can be countered if sexual orientation is seen as an innate characteristic.
“State cannot discriminate against an individual on the basis of a characteristic over which the individual does not have control,” Chandrachud said.
Senior Advocate Abhishek Manu Singhvi, appearing for some of the petitioners, said that the Special Marriage Act had been enacted as an alternative for marriages that go against societal norms. “So government of India is hoist on its own placard when it says it will look at only one type of marriage when [Special Marriage Act] has existed for so long,” he said.
Senior Advocate Mukul Rohatgi, also appearing for the petitioners, listed out provisions in the Special Marriage Act where gender-neutral terms could be inserted. To this, Justice Hima Kohli questioned what provisions will apply in terms of the minimum age of marriage in such cases, according to Live Law.
Currently, Section 4 of the Act states that the man must be at least 21 years old, while the woman must be at least 18 years old.
In response to Justice Kohli’s question, Rohatgi said that the provision can be left as it is. He said: “If two men are getting married, it is 21. If two females are getting married it is 18. You don’t need to change it.”
To this, Justice Ravindra Bhat asked whether the senior advocate wanted the rest of the law to be gender-neutral, but wanted to retain the terms “male” and female” for the part that deals with age of marriage.
Rohatgi said that there is a pending bill that proposes to increase the minimum age of marriage for women to 21 years. “The moment 18 becomes 21 for women, the problem will be solved,” he said.
Add states, UTs as parties, Centre urges SC
On Tuesday, the Centre filed an affidavit before the Supreme Court seeking directions to add all states and Union Territories as parties to the same-sex marriage case, according to Bar and Bench.
The affidavit submitted that the case involves the legislative rights of the states under the seventh schedule of the Constitution and the rights of the residents of the states. The seventh schedule deals with the division of power between the Centre and the state.
The Centre noted that entry five of the concurrent list in the seventh schedule confers states with the power to make laws related to marriage, including making provisions for divorce, alimony and adoption, among others.
“It is clear that the rights of the states, especially the right to legislate on the subject, will be affected by any decision on the subject,” the Centre said. “It is submitted that further, various States have already legislated on the subject through delegated legislations, therefore making them a necessary and proper party to be heard in the present case.”
The Centre said that the court should take the positions of the states on record. It also sought to obtain the views and apprehensions of state governments and place them on record if they cannot be made party to the case, reported PTI.
The petitioners in the case have argued that the provisions allowing marriage only between a man and a woman are discriminatory against the LGBTQIA+ community and infringe on their fundamental right to dignity and privacy.
The Centre has opposed the petitions arguing that same-sex marriages are “not comparable with the Indian family unit concept”.
At Tuesday’s hearing, the Centre had contended that the matter of whether a law should be made to recognise same-sex marriages should be left to Parliament.
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