On April 18, 2023, the issue of same-sex marriage was presented before the constitutional bench of the Hon’ble Supreme Court of India. The bench comprised of HMJs Hima Kohli, S.K. Kaul, CJI, S.Ravindra Bhatt, Narsimha.JJ. The hearing was conducted in a hybrid mode with learned Senior Advocates, Advocates, and the Solicitor General representing the petitioner and respondent side.
Learned Senior Advocate Mr. Mukul Rohtagi presented the opening arguments for an Article 32 petition seeking a declaration of rights of marriage among persons of the same sex and transgenders. He referred to various judgments in Navtej Johar, Nalsar, Puttuswamy, Dipika, Anuj Garg, and Kaushal Cases, and discussed the Indian Penal Code 1860, the sexual offences Act, and the DOMA in the USA which was later struck down. He also discussed the importance of the legislature and the precedents in regard to the subject. In the preliminary discussions, a lady lawyer pointed out the hindrances she faced in various aspects of her life due to her sexual orientation.
Dr. Abhishek Manu Singhivi, a colleague of Mr. Rohtagi, pointed out that the focus should be on the meaning of the word ‘person’ rather than the same sex. He discussed issues such as Inheritance, Adoption, and the importance of personal laws. The Hon’ble CJI and HMJ Kaul clarified that personal laws would not be dealt with, and what has to be seen is the enforceability of the right of marriage, possibly referring to the Special Marriage Act 1954.
The Learned Solicitor General Mr. Tushar Mehta, representing the respondent State, argued on the preliminary aspects of the case. He stated that there arise issues w.r.t freedom of privacy, dignity, and personhood and defined a transgender under the LGBTQx. He added that a person referred to under the act is in connection with a spouse. He discussed that the present matter is under the concurrent list, and the states have to be notified before any operative order.
Mr. Sibal, representing on behalf of the Jamiat group, expressed that any law on the subject would have huge ramifications. Another advocate on the adversarial side discussed the SMA 1954 and stated that the act had dealt with personal law in as much as marriage within prohibited relationship as in Hindu personal law.
Post-lunch session, Mr. Rohtagi continued his argument on the strength of various judgments and emphasized on a nation to be diverse and secular. He strongly argued that such couples should not be looked down upon with disdain and compared their undignified plight in society with the situation of an unsecular society. He vehemently stated that Section 377 is gone and done away with, but the right of such persons is in the dark, and they don’t even enjoy live-in rights such as ordinary married couples under the domestic violence Act. He demanded an equal platform for such persons and discussed issues like constitutional morality.
Overall, the effects on Wills, estate duties, income tax, and gift were also discussed amongst other issues. The matter is being heard today for further arguments before the same bench. The views expressed herein are that of the author, and it is advised that the readers follow the live streaming of the matter at the Supreme Court of India website before taking any action or step upon the above report.
