Published on :
New Delhi: Solicitor General of India Tushar Mehta on Wednesday told the Supreme Court how gender was fluid and took several forms, an aspect that would be prove to be impossible to accomodate in statutes. [Supriyo and anr v. Union of India]
A Constitution Bench led by Chief Justice of India (CJI) DY Chandrachud and also comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha today heard submissions made by the Central government in the same-sex marriage case.
SG Mehta questioned how the recognition of marriage of persons who do not identify with any particular gender can be reconciled with the laws.
“A person who does not identify with any gender is called agender, genderless…it is impossible to reconcile through a judgment..they refuse to be categorised in any gender identity…there are also people who change gender as per surroundings…Then there is gender as per mood swings…There is amicagender, where gender is changed as per the friends they have… anogender where gender identity fades in an out with intensity and comes back with another gender identity…These are facts without value judgment… will it be prudent to lay down regulations even if the Court gives them the status of marriage? This is inconceivable,” he said.
When the CJI asked for the source of the references made by the SG, he cited the Medicine Net webpage, which is a larger network of WebMD.
Today was the fifth day of arguments in the batch of pleas seeking legal recognition of same-sex marriage. The petitioners concluded their submissions today, while the Central government began their arguments in the post-lunch session.
Appearing for the Centre, the Solicitor argued that it was not prudent or legally permissible to deal with the subject of same-sex marriage on the judicial side.
“The Court is not adjudicating a prohibition against a marriage…there is no prohibition for LGBTQ to marry. This Court is on conferring a legal status of marriage which all religion considers as an institution,” he submitted.
SG Mehta also relied on the Constituent Assembly debates during the passage of Special Marriage Act to show that the lawmakers were aware of homosexuality, but still chose to keep it out of the purview of the Act.
“At that time was there same-sex marriage law anywhere in the world? Perhaps there was no foundation for such a marriage to be recognised by law,” Justice Bhat remarked.
The SG pointed out that the debates say that one can marry only the other sex.
“The debates show that they are aware of other spectrum other than man and woman. They were aware of homosexuality, but they consciously avoided it even as a ground of divorce.”
Arguments by the petitioners
Earlier in the day, Advocate Karuna Nundy argued that a married person can seek gender re-assignment. To this, the CJI remarked,
“So the Transgender Act recognises the pre-existing marriage of a person who is trans since the person can be in a marital relationship when they identity themselves as a trans.”
Justice Bhat opined that perhaps, there is no ground for divorce in such cases under the existing marriage laws.
“But here the marriage which is recognised is between individuals who were not transgenders then. If we have to go backwards from this, there has to be statutory support for this. Like in the Disabilities Act.”
Justice Bhat pointed out that not everyone generally has a marriage certificate unless there is a state compulsion.
Nundy then flagged the fact that the Foreign Marriage Act (FMA) does not follow the Special Marriage Act.
“Marriages outside India cannot be registered in India since Section 4 of the FMA uses the terms ‘bride’ and ‘bridegroom’. If Section 4 is read inclusively, the rest of the Act falls automatically into place.”
Advocate Arundhati Katju conceded that the Bench could not decide all the questions involved through the present case.
“We seek a right to not be treated as different, both positive declaration as a mandamus and a negative declaration, as prohibition will go a long way in aiding the courts below. We seek the blessings of the Union of India, bless us same-sex couples as you would bless a heterosexual couple. We need your blessings.”
Justice Bhat then remarked,
“Suppose there is an accident and there is no will then the spouse stands excluded…The organic whole has to be seen in respect of the impugned provisions…to isolate one would not be in consonance with what has been done earlier.”
Advocate Amritanand Chakroborty argued that Parliament did not intend to restrict adoption to heterosexual couples, as the Juvenile Justice Act uses the word ‘couples’.
“It is not just right of LGBTQ couples to claim for adoption, we are talking of abandoned children. Just because of sexual orientation, I will be deprived of a child and a child will be deprived of his family. Petitioners are part of historically discriminated lot and and we deserve the same rights as the heterosexual couples.”
Advocate Shivam Singh stressed that sexual orientation and gender were innate characteristics of a person, and to discriminate on the basis of this would fall foul of the fundamental right to equality.
The hearing will continue tomorrow.
