Same-Sex Marriage Case: Legalising Sexual Autonomy May Be Used To Defend Incest, Centre Tells Supreme Court

Solicitor General Tushar Mehta argued that if uncontrolled personal autonomy is allowed regarding sexual orientation, it could lead to a challenge against provisions that prohibit incest.

The petitioners in the same-sex marriage case have argued in the Supreme Court that sexual orientation is not a matter of choice, but rather an innate characteristic.

Source : File Photo/AFP

The Centre on Thursday submitted before the Supreme Court that "uncontrolled personal autonomy" over one's sexual orientation could challenge legal provisions against incest. A Constitution Bench led by Chief Justice of India DY Chandrachud is hearing the final arguments Tuesday on a raft of petitions seeking to legalise same-sex marriage

Earlier this year in January, a three-judge SC bench transferred nine pending petitions dealing with similar issues from the Delhi and Kerala high courts to itself. On March 13, the three-judge bench led by CJI DY Chandrachud referred the case to a five-judge Constitution bench.

Even though homosexuality was decriminalised by the Supreme Court in 2018, same-sex marriages continue to be unacknowledged and unrecognised by Indian laws. Both the Centre and the ruling BJP have opposed a legal validation of same-sex marriage.

During the sixth day of the hearing on the legalisation of same-sex marriage in India, Solicitor General Tushar Mehta argued that if uncontrolled personal autonomy is allowed regarding sexual orientation, it could lead to a challenge against provisions that prohibit incest. 

The petitioners argued that sexual orientation is not a matter of choice but rather an innate characteristic. Mehta then presented two schools of thought on the matter — one stating that sexual orientation can be acquired and the other stating that it is innate, reported legal news website Bar and Bench.

He then presented a hypothetical scenario of someone claiming autonomy to engage in a relationship with a family member, arguing that if sexual orientation is a valid reason for autonomy, provisions against incest could also be challenged.
CJI Chandrachud, howver, dismissed Mehta's argument, stating that sexual orientation cannot be used to justify allowing incest and that it cannot be exercised in all aspects of marriage.