The intense suspense over whether or not the Supreme Court of India would rule in favour of legalising same-sex marriage in the country remained unabated today, as the court decided to reassemble tomorrow after a long day of hearing. At least 20 petitions from same-sex couples and queer rights activists were taken up today by the five-judge bench of Chief Justice of India (CJI) DY Chandrachud, and Justices SK Kaul, Ravindra Bhat, Hima Kohli, and PS Narasimha.
Emphasising that legalising same-sex marriage in India was necessary to ensure the dignity of LGBTQI+ couples, senior advocate and former Attorney General Mukul Rohatgi, who appeared for the petitioners, told the bench, “Even after 377, Milord, there is a stigma.” That was a reference to the Supreme Court striking down a part of Section 377 of the Indian Penal Code in September 2018, decriminalising homosexuality and same-gender sexual acts. Many same-sex couples celebrated the ruling, and decided to come out without fear.
Since then, the clamour for giving homosexual couples — or even transgender couples — the same marital rights as heterosexual couples has grown in the country. The petitions that were taken up today wanted directions from the Supreme Court for legal registration of their ‘marriage’ under the various laws that are in effect in India and a range of other rights.
The Government of India has already objected to the judicial procedure on legalising same-sex marriage, stating that “appropriate legislature” was the “proper authority” for such a decision. During the Supreme Court hearing, the Central government was represented by Solicitor General Tushar Mehta.
Rohatgi argued that the legal recognition was necessary as “marriage and family is respected in our society”. He said that though homosexuality was decriminalised, homosexual couples still experienced a degree of indignity in social settings. “I am not perceived as a criminal but I am still perceived as a person who is not as good [as others], unworthy of standing shoulder to shoulder in [the] public arena,” he said.
The lawyer for the petitioners said that same-sex couples wanted to enjoy “the full panoply” of their lives, and that discrimination on the basis of sexual orientation was “deeply offensive to the dignity and self-worth of the individual”.
At one point, appearing to agree with the petitioners’ side, the CJI said that the notion of a biological woman or man was not absolute and “it’s not just a question of what your genitals are”.
Child protection body opposes same-sex adoption
One of the rights that homosexual couples hope the Supreme Court would give them is the right to adopt, the same as heterosexual couples. However, a day before today’s hearing, the National Commission for Protection of Child Rights (NCPCR) moved the Supreme Court, saying that same-sex couples should not be allowed to adopt children, as this went against child welfare.
Filing the application through advocate Swarupama Chaturvedi, NCPCR cited studies to make its case. “It is humbly submitted that allowing adoption to same-sex couples is akin to endangering the children. It is further submitted that a proper legislative system needs to be adopted regarding same-sex couples,” the application said.
It added, “Children raised by same-sex parents may have limited exposure to traditional gender role models which could impact their understanding of gender roles and gender identity.”