The Supreme Court on Wednesday dismissed claims by the Central government that same-sex marriage and queer rights are "urban elitist concepts". Chief Justice of India DY Chandrachud, presiding over a Constitution Bench, stated that more people in urban areas are revealing their sexual identities, but that does not imply the government has evidence to suggest that same-sex marriages are confined to urban elites. The judge added that the state cannot discriminate against individuals based on their innate characteristics, which are beyond their control, reported Live Law. The remarks were in response to the Central government’s submission that the petitions representing those seeking recognition of same-sex marriages are urban elitist views. The government also argued that the legislature must consider broader views from all sections of society.
The Constitution Bench, comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, PS Narasimha, Hima Kohli, and CJI Chandrachud, was hearing a batch of petitions seeking legal recognition of same-sex marriages in India. The petitioners argue that the right to marry a person of one’s choice should extend to LGBTQIA+ citizens as well.
The Central government opposes the petitions. In an affidavit filed before the Supreme Court, the government claimed that same-sex couples living together as partners and having a sexual relationship is not the same as the concept of Indian family unit. The government submitted that the concept of Indian family unit revolves around a biological man and biological woman with children born out of their wedlock. The central government also urged the Court to first decide on the maintainability of the petitions.
The proceedings started on Tuesday on a heated note as the government asserted that it will re-examine whether to participate in the proceedings or not. An Islamic religious body, Jamiat-Ulama-I-Hind, has said that notions like same-sex marriage originate from western culture that have radical atheistic worldviews and the same should not be imposed on India. The National Commission for Protection of Child Rights (NCPCR) has also opposed the grant of adoption rights to same-sex couples. It cited a study that shows that such a child gets affected both socially and psychologically, reported Bar & Bench. However, the Delhi Commission for Protection of Child Rights (DCPCR) has supported the case of the petitioners, arguing that adoption and succession rights must be conferred on same-sex couples.
Senior Advocate Abhishek Manu Singhvi, who is representing the petitioners, argued against "discriminatory denial" of the right to marry based on "ascriptive characteristics" of sexual orientation and gender identity. CJI Chandrachud questioned whether the state can discriminate against an individual based on characteristics that are beyond their control. Singhvi responded in the affirmative, and Chandrachud added that when one considers homosexuality and same-sex marriage as innate characteristics, it counters the government's contention that these are elitist or urban concepts.
At this juncture, Senior Advocate KV Vishwanathan informed the bench that his client, Zainab Patel, is a transgender woman who was disowned by her family, begged on the streets, and has now risen to become the Director of KPMG. Vishwanathan added that it is wrong to brand such a person as an "urban elitist." Similarly, Advocate Jayna Kothari mentioned that her client Akkai Padmashali was a well-known trans activist who was thrown out of her own house at the age of 15. Kothari argued that to say that the recognition of same-sex marriages is an elitist concern is wrong.
Singhvi argued that those who seek marriage do so for community and social validation of their relationship, a sense of security, greater financial support and security, as marital status by itself is a source of dignity, fulfillment, and self-respect, and that it is an integral aspect of the ability to have and enjoy life.