The Supreme Court remarked on Wednesday that the Central Government cannot label homosexuality and the concept of same-sex marriage as “urban elitist,” especially in the absence of data to support this claim.
“It may be more urban in its manifestations because more people in urban areas are coming out of the closet,” CJI stated.
A Constitution bench comprised of CJI DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha was considering a slew of petitions seeking legal recognition for same-sex marriages in India.
For the petitioners, Senior Advocate AM Singhvi argued against “discriminatory denial” of the right to marry based on “ascriptive characteristics” of sexual orientation and gender identity.
“Are you saying that the state cannot discriminate against an individual based on a characteristic over which the individual has no control?” CJI inquired.
AS Singhvi replied in the affirmative, CJI added, “And when you say that this (homosexuality) is an innate characteristic, it’s also an argument in response to the contention that this is very elitist or urban or it has a certain class bias. A class bias cannot exist in something that is innate. Because more people are coming out of the closet in cities, its manifestations may be more urban. There is no government data indicating that this is urban or whatever.”
The remarks were made in response to the Centre’s submission that those seeking marriage equality for homosexual groups are merely “urban elitist” ideas.
At this point, Senior Advocate KV Vishwanathan informed the court that his client, Zainab Patel, is a transgender lady who was abandoned by her family, begged on the streets, and has now risen to the position of Director at KPMG. “To label her a “urban elite” demonstrates a complete lack of grace. Today, she is a member of the Transgender Council, which the government appointed under the Act!”
Similarly, lawyer Jayna Kothari stated that her client, Akkai Padmashali, was a well-known trans campaigner. “At the age of 15, she was thrown out from her own home. She had to drop out of school, spend time on the streets, and then return to normal society. They’ve lived these lives. And it is incorrect to imply that this is an elitist issue.”
Singhvi contended that those who seek marriage do so for the following reasons: (i) community and social validation of a relationship, (ii) the sense of security it provides to couples, (iii) greater financial support and security, (iv) marital status by itself is a source of dignity, fulfilment, and self-respect, and (v) it is an essential aspect for the ability to have and enjoy a family life.
“Adoption, surrogacy, interstate succession, tax exemption, tax deductions- it just takes marriage- compassionate government appointments. This is only an example, not an exhaustive. Only marriage is required for these, and everything else follows–compensation for dependents, appointment of nominees for post-retirement benefits, spousal contact, entitlement to physical remains, and so on” Singhvi stated.
In this case, the CJI stated that even if a couple is in a gay or lesbian relationship, one of them can still adopt. “So, the argument that this will have a psychological impact on the child is belied by the fact that it is open today as the law stands,” CJI remarked.
In addition, Justice Bhat questioned about the state of insurance law in relation to homosexual couples. He said that if the parent legislation is gender neutral, the rules might be tailored to fit homosexual couples without any restrictions.
“Take insurance; insurance law in and of itself is regulated. So, do we have IRDA regulations, or are these are standard policies that have been approved? Do these expressions appear in IRDA regulations, or are they left loose? I suspect they are open ended,” Justice Bhat stated.
Singhvi replied, “We’re talking about group insurance. I am a family of one, two, and children- you get a family group insurance. You might not get there. At the end of the day, the reason for refusing me is that I am not married or am married in a form not accepted by law.”
“There are some things that can be done right away without having to enter other arenas. It becomes much easier if there is no prohibition in parent enactment,” Justice Bhat stated.
“I suspect that once this court opens the definition of marriage, those concerns will be addressed. Because insurance companies and banks typically have only one concern- that you be married,” Senior Advocate Menaka Guruswamy, who is also representing for the petitioners stated.
The bench will resume hearing the matter tomorrow.
