'If you go back to Indian texts…': Gay marriage petitioners to Supreme Court
Gay marriage hearing Supreme Court news: Today is the second day of the Constitution Bench's hearing, with all submissions expected to be closed by Thursday.
The second day of the Supreme Court hearing of pleas to legalise marriage for same-sex and alternative sexuality couples - which the government opposes - began Wednesday with a reference to the oft-repeated rant against LGBTQIA+ relationships - they are 'against the order of nature'. Arguing for one of the petitioners, senior advocate Mukul Rohatgi stressed the need to 'push society to acknowledge us as equals in all respects because the Constitution says so'.
"The argument of the other side is - a 'biological man', a 'biological woman' (and) their union will lead to procreation… that is the order of nature. They are saying I'm 'abnormal'. What is 'normal' is the majority… but that is not the law, that is a mindset. The important thing is deconstructing the hetero-normative framework…" he told the bench led by Chief Justice DY Chandrachud.
"This Victorian morality issue came in the 1800s. If you go back to Indian texts, for hundreds of years these (non-heterosexual sexual) acts were depicted on walls for thousands of years… our morality was very different, far more advanced (and) not Victorian… stereotyped, stigmatised!"
He referred to the cave paintings of Khajuraho and differentiated between popular morality' and 'constitutional morality', saying, "Popular morality cannot defer the decisions of this court for the legislative process… constitutional morality will become a habit when upheld by this court."
"What I am really requesting… declaration of marriage… is really a paraphrasing of this - 'I walk into a public space with my partner knowing that the law and the state recognises this union as a marriage, no one will raise stigma against me'," he said, "I require beyond the badge that I am 'married'. I also want the positive and affirmative consequences of a valid marriage."
READ | Marriage equality around the world. What about it?
He then referred to a point he made yesterday - that 'wherever husband and wife (are) used' (in the Special Marriage Act), legal inclusivity (and with that a guarantee of rights) only needed a reading of the terms to become gender neutral. "Wherever 'man', 'woman' is used… say 'person'."
"If we are equal, we require an affirmative nod from the court - 'you are equal, you will not be treated as lesser, and therefore, there will be full enjoyment of right to life, dignity, privacy at home'"
READ | List of countries where same-sex marriage is legal
To Justice SK Kaul saying 'everything can't change at once', Rohatgi underlined the 'consequential effects' - a reference to the many socio-economic and legal benefits currently denied to non-heterosexual married couples, like the ability to open joint bank accounts, buy medical insurance or even rent an apartment - that will follow the Supreme Court legalising same-sex/alternative unions.
Rohatgi also stressed to the court that social conventions - while influenced by a multiplicity of factors - remain governed to a large extent by what the law says, even if society itself has not yet understood or accepted the change.
"Sometimes the law takes the lead… I gave you the example of the Hindu Widows Right to Remarry Act which came in 1800s. Society was not even ready till 1900s. There, the law acted with alacrity."
The letter to states, UTs
Earlier today, before the hearing began, the court was told the law ministry had written to states and UTs asking for their views on this subject 'so the standpoint of the Union and State Governments are represented properly…'
States and UTs have been given 10 days to respond.
The government has dismissed pleas seeking the legality of non-heterosexual marriage as ‘urban elitist views for purpose of social acceptance’.
READ | From SC, Centre seeks views of states, UTs on same-sex marriage
What happened on Tuesday?
On Tuesday - on the first day of these hearings - the court overruled the government’s objections against the judicial determination of the issue.
The government opposed the hearing on grounds it is for Parliament to take a call on this subject, and that the legislative intent is clear - that only a 'biological man' and 'biological woman' could be legally married.
But the court was unimpressed and said, "There is a value judgment you are making… this is wrong. There is no absolute concept of 'man' or 'woman'. It cannot be about your genitals.. far more complex… can’t depend on genitals."
READ | In same-sex marriage plea, Supreme Court's 'incremental approach'
On Sunday…
The government urged the court not to interfere with the legislative policy that consciously outlaws same-sex marriages while seeking the dismissal of all the petitions on the ground of maintainability.
READ | 'Urban elitist views': Centre opposes same-sex marriage pleas
The application followed a counter affidavit in March which said that legal validation of same-sex marital unions will cause 'complete havoc' with the delicate balance of personal laws in the country and accepted societal values.
